The boundaries of fair use, the legal exception allowing transformative use of copyrighted material, can be slippery. Department of Art & Art History Chair David Craven contributed a legal opinion to a copyright infringement lawsuit recently settled between artist Shepard Fairey and The Associated Press centered on a popular campaign image of Barack Obama.
"Just as all art comes in some sense from other art and/or mass culture, so Fairey used as raw material for his innovative image a very pedestrian Associated Press (AP) wire service photo in 2006 by a journalist named Mannie Garcia," Craven states in his deposition. "Even if one only scans the poster briefly, it is clear that the highly resourceful image by Shepard Fairey is far more visionary, much more nuanced, and substantially more sophisticated aesthetically. In addition, the poster – unlike the news photo – features a dynamic figure/ground relationship and a brash color interaction, not an anecdotal backdrop like the flag. It is from that deft aesthetic transformation of the photo that the poster garners much of its ideological resonance and vast popular appeal."
In the settlement, both sides "agreed that neither side surrenders its view of the law," according to an AP news release. Both will share rights for future use of the disputed image.
Read Craven's full deposition below.
Legal Deposition for Shepard Fairey's image Hope (2008):
Done for the lawyer of the artist, Anthony Falzone, Professor of Law, Stanford University Law School
Why No Serious Scholar of Art History Would Say That It "Plagiarized" an AP Photo
David Craven, Distinguished Professor of Art History, University of New Mexico
(May 1, 2009)
An instructive fact about the 2008 presidential elections was how a highly original visual image has become iconic of the whole period. This is the now famous poster of Barack Obama, Hope, by Shepard Fairey -- which harbors a clear artistic interchange with the famous Latin American posters of Che by artists like Alfredo Rostgaard and Elena Serrano, among many others. (This fact was not noticed by anyone in the US press corps at the time.) The fame of the Shepard Fairey poster – which originated as a mixed media stenciled collage in acrylic but has been widely circulated as a glossy offset poster – is easy to understand at first glance. The portrayal of Obama is based on a brilliant, almost seamless synthesis of several different visual idioms, even as it is obviously not identified exclusively with any one of them.
Just as all art comes in some sense from other art and/or mass culture, so Fairey used as raw material for his innovative image a very pedestrian Associated Press (AP) wire service photo in 2006 by a journalist named Mannie Garcia. This AP journalist simply photographed Obama quite unimaginatively in front of an American flag. Even if one only scans the poster briefly, it is clear that the highly resourceful image by Shepard Fairey is far more visionary, much more nuanced, and substantially more sophisticated aesthetically. In addition, the poster -- unlike the news photo-- features a dynamic figure/ground relationship and a brash color interaction, not an anecdotal backdrop like the flag. It is from that deft aesthetic transformation of the photo that the poster garners much of its ideological resonance and vast popular appeal.
A cursory look at the Fairey image shows that he has used broad color planes in a manner that recalls the Cubist paintings of Robert Delaunay in the teens and a type of sans-serif typography invented by the Bauhaus around 1920. The use of "abstract" non-graduated color to flatten the ground notably heightens the focus and sharpens the tone, so as to counter the cliche-ridden background of the bland news photo that AP erroneously claims Shepard "plagiarized." The banality of the AP image is replaced in the poster by a portrait that soars in pictorial terms, owing to how Fairey has entirely resituated the locus of Obama's head within the original field. In the photo, Obama's portrait occupies the bottom 3/4s of the space, while in the poster his head commends the upper 3/4s of the pictorial space. As such, the print by Fairey is as uplifting, as the AP photo is earth-bound. A superb touch, indebted to the Conceptual Art of the 1960s, is how Fairey fills the lower register of the poster left vacant by completely reconfiguring the original lay-out of the photo. In this new lower zone of the poster, which does not exist in the original AP photo, Fairey has written in bold Bauhaus font: "HOPE."
Similarly, by the way that he has used stark non-illustrative red highlights on the left side of Obama's face (which is to say the right one for the viewer), Fairey has significantly intensified the gaze of Obama upward. Acting as a foil for this color plane is the grayish-blue background that flows over on the right side of Obama's face, thus making his image arrestingly multicolored. In turn, there is a fine use of hatching or stratification in this latter passage that enlivens the portrait much more than mere flat, un-inflected color would have. In short, Shepard Fairey has taken an ordinary photo and aesthetically remade it into one of the most famous images produced in the USA over the last several decades. The quite different AP photo obviously did not lead to a reception like that accorded the Fairey poster. Why? Because the news photo is missing virtually every aesthetic attribute that makes HOPE such a brilliant image. In part, this was possible, because, just as was true of the far greater Che photo by Korda in 1960 that was used as raw material by so many poster artists in Cuba and elsewhere, the photo of Obama's gaze can be made to seem "ascensional" – to quote Roland Barthes. This is what Garcia did NOT accomplish and Fairey did, hence the enormous gulf between the two images. In his famous discussion of the ideological taxonomy of positions found in electoral campaign photos, Barthes expounded on the differences between the standard full-face photos of rightwing political candidates and the conventional ascensional orientation of leftwing candidates*. Fairey clearly understood this key point and transformed the news photo accordingly. Hence upon close analysis, there is no way that Shepard Fairey's poster can be said to "copy" or "plagiarize" the uninspired AP photo that he used as mere raw material for his own iconic image.
* Roland Barthes, "Photogenie electorale," Mythologies (Paris: edition du Seuil, 1957): 160-163. Barthes identifies the ascensional view more with ¾ views, than frontal ones, but Obama's ascensional gaze is linked, as it was in the Che image, with a full facial view on a twisted torso, that has the figure looking over the spectators head -- not directly at us, as in photos of "tough" rightwing candidates.
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