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Shepard Fairey’s Talk on the Obama Image

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Shepard Fairey, interviewed on Monday, February 2nd, by Charlie Rose, is embedded below.

Video archived — restoration pending.


While Fairey’s talk and perspective is interesting and worth a watch, specific to photography, rights, and business, at about 7:05, Fairey recites a conversation he had with the Obama campaign, regarding how much the image Fairey created is resonating with the campaign staff. Fairey cites the unnamed campaign staffer calling him “would you be willing to do a portrait from a photo that we have the rights to for a poster that we can use both to raise money and to use as a promotional tool. And so I donated an illustration to them. And they, they quickly caught on to the idea of this this look being a very useful look for their brand, augmenting what they already established.“
(Continued after the Jump)

This is reasonable, then, to suggest that Fairey might have been aware that he needed to have rights for a photo that is the basis for his artwork, and that a “fair use” argument might not be as strong as they were initially arguing.

Surprisingly, while Fairey’s gallery called the source of the image, Mannie Garcia, as we reported on yesterday – 10 Questions for Mannie Garcia – on January 21st, 12 days prior, Fairey does not acknowledge Garcia’s AP image as the basis for his HOPE image. It comes across as if Garcia’s image never existed.

In a letter to Fairey (Wiki:Shepard Fairey), a citation from Obama’s letter reads:
I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can change the status-quo.

Your images have a profound effect on people, whether seen in a gallery or on a stop sign. I am privileged to be a part of your artwork and proud to have your support. – Barack Obama, February 22, 2008
Where is Garcia’s letter?

Fairey certainly made money off the image, despite suggestions to the contrary. An interview cited on Wikipedia, reveals:
Fairey distributed a staggering 300,000 stickers and 500,000 posters during the election campaign, funding his grassroots electioneering through poster and fine art sales.”I just put all that money back into making more stuff, so I didn’t keep any of the Obama money,” said Fairey in a December 2008 interview.
So, how much does it cost to produce that many stickers and posters? Copyright judgments are often based upon the transfer of gross profits that the infringer made to the copyright holder. It does not matter that the infringer spent all those profits, or that they “put all the money back into making more stuff…”, since that is a decision they made, it does not dismiss the notion that those profits are due the copyright holder. That’s like not making a bank robber pay back the spoils of a heist because he spent it all. It does not matter that he spent it on an orphanage’s roof (a la Robin Hood), it still must be repaid.

Fairey, in another interview on the subject of images, is reported to have said:
…the image that I continued to put out there myself, they [the Obama campaign] couldn’t have any affiliation with it because it was being perpetuated illegally in a lot of ways, and so I just continued to do that on my own without any coordination with them, and that was the “Hope” image.
What is meant by that? Perpetuated illegally, as in, posted on places with “Post No Bills” notices? Plastered on bus shelters without permission? Or, was he speaking of the source of the image as being obtained without a license?

I think that one reasonable solution, moving forward, would be that in the same breath that Fairey speaks of the art, when he says “the HOPE image I created”, he should instead be saying “The HOPE image I created, based upon a Mannie Garcia photograph…”. Most people know that Alberto Korda was the photographer who made the iconic image of Che Guevara, even as that image was turned into artwork by artist Jim Fitzpatrick. So too, should people be aware of Garcia’s contribution to Fairey’s artwork. It’s only fair.

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Originally published on Photo Business News & Forum on February 6, 2009. Comments are closed; this post is part of the archive.

15 thoughts on “Shepard Fairey’s Talk on the Obama Image”

  1. It’s just like the hypocritical nature of the entire Obama campaign, Fairey is just representative of their values.
  2. Garcia’s 2006 image is pedestrian at best. A monkey could have produced it with similar access. It didn’t reach the “iconic” status he himself bestows upon it until Fairey got his hands on it.
    I think Fairey should be excoriated for using the image without permission and continuing to downplay Garcia’s involvement. However, you have to wonder if Garcia wishes this didn’t happen. To make this much of a stink about a weak image that has very little historical context is embarrassing.
    Let’s not forget what you’re really implying here. Garcia needs to get paid/recognized.
    Let’s examine that more closely. The man — and the AP as an extension of his presence — took a photo of a public persona in a public setting — essentially capitalizing on Obama’s fame. This isn’t Rosenthal at Iwo Jima, Capa at Cerro Muriano or Adams in Vietnam. We’re talking about behavior that closely follows that of the paparazzi. The image had no inherent worth until Fairey modified it. You’re prescribing value for something that never existed.
  4. I know you can’t paint with a broad brush but I see this in part as a generational problem. Fairey is a young guy brought up in the age of ‘Whats wrong with downloading images, music etc. off the internet for free’? Older people in general have a better sense of what belongs to them and what belongs to someone else.
  5. “The image had no inherent worth until Fairey modified it. You’re prescribing value for something that never existed”.

    A car, jeans or even food has no value until someone wants to buy it – or should I say needs to buy it – is required to buy it.

    The value is latent – dormant as is anything until it’s consumed and there-in lays the value.
    The ‘Fame’ of a Leibovitz celebrity shot might be marginal until it’s published and put into context.

    A friends photo of JFK Jr’s and his wife Caroline value – $175 to the Washington Post until the poor guy crashed his plane into the sea.

    A latent value…

    Grow up and wait until you’re exploited.
    This must be a guy correctly pinned by Craig M.
  6. Sue them all.

    I hope that Fairey winds up losing in court so badly that he has to sell his secondhand clothes to pay the winner of the judgement.

    This is not an issue about “the world vs. the poor young hip street artist” the issue is about infringement plain and simple; please let’s not blur the issue.

    The Obama staffer that told this guy that they “owned” the rights to the image should also be enjoined in the suit.
  7. Sue them all.

    I hope that Fairey winds up losing in court so badly that he has to sell his secondhand clothes to pay the winner of the judgement.

    This is not an issue about “the world vs. the poor young hip street artist” the issue is about infringement plain and simple; please let’s not blur the issue.

    The Obama staffer that told this guy that they “owned” the rights to the image should also be enjoined in the suit.
  9. I’d love it if Richard Prince appropriated Fairey’s work then sold it for millions to the rich.

    I have to think about what this image and its justified copyright infringement is going to do to photography and the respect of the art in the long run.

    I wonder how this is going to tie into the orphan works.
  10. Ah yes. This is the most “iconic” image I have ever seen of Obama. It has been around since 2006 and I’ve seen it plastered on every street corner since. /sarcasm/

    Who are you defending here? Garcia, who’s so out of touch that he doesn’t even know who owns the copyright to a two-year old photo?

    “The ownership of the copyright is in dispute…”

    Old-guard photographers would skewer a newbie if he admitted to this, claiming he was destroying the industry and all that they had worked so hard to procure for this new ungrateful generation.
    Or, are you backing the A.P.? An organization which has been bending photographers over a barrel for years with their policies.

    http://tinyurl.com/a9m76u (1996)

    Perhaps you are defending the general concept of copyright as we currently understand it. Who owns that image again? Oh. That’s right. Garcia’s still “in discussions with the AP over this issue.”
    This obviously isn’t about professionalism, ethics or respect. It’s about money and greed. For crying out loud, you exhibit your logic with an anecdote about a buddy who made a killing off a picture of a dead man.

    “A friends photo of JFK Jr’s and his wife Caroline value – $175 to the Washington Post until the poor guy crashed his plane into the sea.”
  11. Fairey’s interview on the Colbert report has him saying that he did the image on his own. This is counter to the C Rose interview.
  12. 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work

    3. amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    4. The effect of the use upon the potential market for or value of the copyrighted work.

    Shepard Fairey loses on the first point, it was for profit. However he also donated $400,000 to the Obama Campaign, and he didn’t pocket the rest, he invested it. This is not legally correct, but he does get a moral victory here.

    The second point is too vague to make any conclusions.

    The third point Fairey wins in a landslide. Here is the original photograph:

    http://www.truthdig.com/images/eartothegrounduploads/clooney_350.jpg

    GEORGE CLOONEY IS IN IT. Clearly Fairey took one small portion of it, altered the structure, created his own color fields, etc. This is a strong act of personal creativity. Besides, How else is he supposed to create a veristic representation of the president? Have the man pose for him as a live model?

    Fairey also dominates the fourth point. Mannie Garcia and the AP are morons. Rather than spending tons trying to get money from Fairey, they could be marketing the stuffing out of their photo, “The Inspiration for HOPE” or something along those lines and selling millions. Fairey brought tons of attention back to the original source of inspiration, which otherwise, with george clooney included, would have died anonymous.

    On the three distinct points of Fair Use, Fairey wins two out of three. I’d bet good money that he wins this case.
  13. FYI, I forgot to write this, but the four points listed at the top of my last argument are the four principles of the Fair Use Law.

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