The debate about Shepard Fairey’s Hope poster highlights a hot issue for digital designers. What can we legally use in our design? Putting aside what I believe the answer should be and my collection of Shepard Fairey prints for a moment I’m going to focus strictly on copyright. Shepard Fairey’s Hope poster violates the Amount and Substantiality copyright rule. (1) It encompasses the essence of Mannie Garcia’s photo. The artwork is altered, but not to a degree that’s tranformative, and defending it as being just culturally transformative makes for a lightweight, subjective arguement.
As far as precedent goes — another artist who worked from photographs they didn’t own is Andy Warhol. Fairey has altered unlicensed photos approximately to the same degree that Warhol altered his unlicensed photos to become new artwork. Lucky for Warhol, his iconic Marilyn Monroe and Campbell soup cans were safe from copyright infringement. The Marilyn Monroe image was a publicity shot for the film Niagara, and presumably, in the public domain. And his tribute to Campbell soup was far better PR than a lawsuit from the soupmaker for using it's image. However, Warhol wasn’t always so lucky. He was sued in November 1966 by the photographer Patricia Caulfield for using her photograph in his "Flower" painting. Patricia Caulfield won the lawsuit. (2)
The subject matter of the Shepard Fairey print has drawn a lot of publicity and consequently has attracted a great deal of scrutiny. While I believe that technically he’s viotating copyright, I wonder, is it necessary for a massive news cooperative to persecute an artist for expressing his personal ideals without profitting in the process? Apparently it is. Personally I’d prefer a loosening of copyright law so I’d be able to cut and paste anything I come across. If it was my photo — I like to believe I cherish unobstructed creativity above profit and as an artist would want others to share my point of view. However, if I owned a photo that was going to be used in a way that I believed would damage it’s integrity I’d want to have say over it’s fate.
1. Fair Use, From Wikipedia
Retrieved September 25th, 2009 from Wikipedia website:
http://en.wikipedia.org/wiki/Fair_use
2. Q: Why Wasn't Warhol Sued? A: He Was
Retrieved September 26th, 2009 from Nolo's Patent, Copyright & Trademark Blog website:
http://www.patentcopyrighttrademarkblog.com/2009/07/warhol-infringement-lawsuits.html
Another nice post...and yeah, this statement: "If it was my photo — I like to believe I cherish unobstructed creativity above profit and as an artist would want others to share my point of view. However, if I owned a photo that was going to be used in a way that I believed would damage it’s integrity I’d want to have say over it’s fate." - is exactly the crux of it, and why we spend so much time debating it.
ReplyDeleteI really wonder what the eventual outcome will be down the road...if there will ever be a clean and clear outcome that can be honestly and consistently judged against...because I know that even myself, I feel pretty passionately about both sides of the argument from minute to minute, often depending on which side of the coin I'm presently on. I completely understand the hypocrisy of that...which is what makes it so fascinating.
One thing I do try to keep in mind is that although I'm very involved in various forms of multimedia, I don't make my living as an artist, per se. So, it's easy for someone with a "day job" to say "hey, take my music/visuals - go nuts!" because it isn't our livelihood. While I do think that making things free can sometimes result in people actually paying more to buy a full album to support an artist or a custom painting they can call their own, etc., I also wonder what effect it would have on the art itself if there were less people trying to do it exclusively - there are things you can accomplish artistically with 40+ hours a week that are simply not feasible if you're balancing a full time gig and the other pressures of life.