Banksy, Banksy, Banksy

If you haven't seen Banksy's exuberant Exit through the Gift Shop try to see it. A rogue and picaresque journey. Even includes a cameo appearance by Shepard Fairey. And now...Banksy does a dark and scary intro to...The Simpsons. Art and Entertainment's mutant child.

Shepard Fairey Yet Again

I am becoming almost paranoid about Shepard Fairey. His art is interlaced throughout our culture and my life.

Four recent examples:
1. Andre the Giant seen on an abandoned building in the new art district in Miami.
2. A spoof (of Fairey and Obama) on the cover of The Advocate.
3. A recent holiday gift to me, the Shepard Fairey Acme Obey Card Case for business cards. Let's hope the clients get the message...
4. An actual Shepard Fairey recent Obama critical poster.

AP Has No Right to Obama ‘Hope’ Image

Excerpted from Bloomberg, more on the Shepard Fairey Debacle:

AP Has No Right to Obama ‘Hope’ Image, Photographer Tells Judge
By Erik Larson

The Associated Press, which sued artist Shepard Fairey for using an AP photograph as inspiration for a Barack Obama campaign poster, wrongfully copyrighted the image it seeks to protect, the photographer told a judge. Mannie Garcia, the freelance photographer who took the disputed photograph while on assignment for AP, said the news company’s copyright for the image should be invalidated. “The AP is aware, and was aware at the time of filing its copyright application for the Garcia photo that it was not the true owner of the rights to that photo,” the photographer’s lawyer, George Carpinello, said in the filing.

Garcia is challenging both the AP and Fairey by trying to join the pending lawsuit between them. The news company sued Fairey in March, accusing him and his Los Angeles-based company, Obey Giant Art Inc., of copyright infringement for using Garcia’s 2006 photograph of Obama at a National Press Club panel discussion about the humanitarian crisis in Sudan. Garcia also claims Fairey wrongfully copied the photograph.

The AP “remains confident in AP’s ownership of the copyright, because Mr. Garcia was an employee of AP when he took the photo in 2006,” said Paul Colford, an AP spokesman. Garcia, who works out of Kensington, Maryland, said in his court filing "that he can’t be considered an AP employee, because he was on assignment for five weeks and wasn’t eligable to join a union or receive health, vacation or unemployment benefits."

Whew...If we watched Obama, followed the lawsuit, obeyed Shepard Fairey and have an opinion, does that mean we can join the lawsuit too?

Here's the case info if you want to follow it on Lexus Nexus...
The case is Fairey v. The Associated Press, 09-cv-01123, U.S. District Court, Southern District of New York (Manhattan).

Could I have that recipe please?

The latest Salvo in the Shepard Fairey Obama Hope Icon Wars, spotted on TechCrunch:

Start Mobile is having a problem with Apple. In a new app, Apple doesn’t like the way one piece of art depicts President Obama. Is it out of line or tasteless? I don't think so. It’s Shepard Fairey’s famous “HOPE” image.

Here’s the wording in the rejection:

Thank you for submitting Start Mobile Wallpaper Gallery to the App Store. We’ve reviewed Start Mobile Wallpaper Gallery and determined that we cannot post this version of your iPhone application to the App Store because it contains content that ridicules public figures and is in violation of Section 3.3.12 from the iPhone SDK Agreement which states:

“Applications must not contain any obscene, pornographic, offensive or defamatory content or materials of any kind (text, graphics, images, photographs, etc.), or other content or materials that in Apple’s reasonable judgment may be found objectionable by iPhone or iPod touch users.”

The artwork in question is now hanging in the National Portrait Gallery. As well, Fairey’s works are in the collections of the Museum of Modern Art in New York, the Los Angeles County Museum of Art and the Victoria and Albert Museum in London.

I wish I had the recipe for Fairey's ability to stir up controversy.

The Motherlode

Last week, I went to buy some Damar Medium at Soho Art Materials. It's on a block that is in the process of neatening up, upgrading and all the new, new. I was struck by one old building that deserves NYC landmark status due to its extensive motherlode of varied graffiti. Here are just a very few of the images I collected that morning (including one with a poster by...Shepard Fairey):

Just when you thought....

Andre the Giant lives...and so does Shepard Fairey!

Now who's that artist?

I ran into a group of bikers on tour recently who were all talking about the wonderful artist who created the art for their cycling shirts. They are all signed and considered a collectible. The bikers love the imagination of her designs.

I may have been asleep through most of Art History 101 which met at 8:00 a.m., but these images are not by Picasso or Roy Lichtenstein or Louise Lawler, or Sherrie Levine, or Shepard Fairey, so...who's the "artist"?

Illegal Art #2

Today copyright owners are likely to sue artists who appropriate their work, after all they now understand the full value of brands. In fact, Shepard Fairey has done his own share, suing people for using "Obey" attached to their artwork. The question becomes for artists not whether you can win but whether you can afford the lawsuit.

Quoted in New York Times article from 2003

"Legal worries convinced Diana Thorneycroft that she should pull several drawings from a recent exhibition in Winnipeg, Manitoba. Canadian law does not consider parody fair use. The pieces, now on display as 'Foul Play' in 'Illegal Art,' depict dolls of familiar characters like Mickey Mouse and Bart Simpson being bound or 'killed' by hanging or gunshot.

'I think my drawings are clearly dealing with parody,' Ms. Thorneycroft said. 'But you know — I mean, murdering Mickey Mouse, the people who work for Disney may not agree with that."

However there was a lawsuit that gave me hope. It was one between Tom Forsythe, a photographer and Mattel, relative to the series, "Food Chain Barbie." At the end of a decision where Forsythe prevailed, Forsythe's legal team asked for all legal costs to be paid by Mattel to send a message to corporate America that artists do have some rights in fair use, especially the one of parody. The firm Howard, Rice, Nemerovsky, Canady, Falk & Rabkin did pro bono legal work for Forsythe in excess of $1.5 million in defense of the case and Forsythe personally spent in excess of $200,000 for legal out of pocket costs. After a round of appeals, the District Court echoed the Ninth Circuit and ordered Mattel to pay all legal fees and expenses. That award of $1.8 million is on top of an award of $300,000 for the cost at appeal, with Mattel writing a check for $2.1 million.

Copyright and Fair Use Issue #1000000000000000000000000000000000

Part 5

Artists don’t seem all that clear themselves when they discuss their relationship to copyright and fair use. For example in Print magazine, Milton Glaser says, "...For myself—this is subjective—I find the relationship between Fairey’s work and his sources discomforting. Nothing substantial has been added. In my own case, when I did the Dylan poster, I acknowledged using Duchamp’s profile as an influence... " Look at the pictures below and see why this raises the gray areas of fair use, plagiarism, referencing, and appropriation. The little block on the upper right of the famous Dylan poster says "Milton Glaser." Yup, I didn't see Duchamp's or Peter Max's name either.



Perhaps we should look to the old phrases guide us; "Let your conscience be your guide," "Handsome is as handsome does," "Do unto others as you would have them do unto you." Or maybe we just want to have our cake and eat it too.

Warholize me! Obamicon me! Sue me!

Copyright and Fair Use PARTS 2 and 3




"Steal this blog," or rather "Sue this Blog," might be where we're going next in the continuing saga of Fair Use. Copyright infringement lawsuits directed at bloggers and other online publishers are on the rise. According to the New York Times, the number of suits rose more than 500% in 2007. These legal disputes are symptomatic of the ease of “sharing” and the Internet’s link economy. Many web sites post excerpts from time to time, including this one. At what point does excerpting from an article become illegal copying?

The courts have not provided much of an answer. In the United States, the copyright law provides a four-point definition of fair use, which takes into consideration the purpose (commercial vs. educational) and the substantiality of the excerpt.

As Mr. Ardia, whose Citizen Media Law Project is part of the Berkman Center at Harvard Law School said, “New modes of creation, reuse, mixing and mash-ups made possible by digital technologies and the Internet have made it even more clear that Congress’s attempt to define fair use is woefully inadequate.”

For now, Web sites are defining it themselves. Sites like Alley Insider and The Huffington Post are ad-supported businesses that filter the Web for readers, highlighting what they deem to be the most meaningful parts of newspaper articles and TV segments.

The Huffington Post, co-founded by the author and columnist Arianna Huffington, is perhaps the star of the excerpting debate. Ms. Huffington’s editors are especially adept at optimizing the site for search engine results, so that in a Google search, a Huffington Post summary may appear ahead of the original article.

Read the full article in today’s New York Times, it is our future.

See Yourself as Others Sue You




Adding to this is the current rage for portraits "in the style of" that you can create yourself. There are thousands of sites today where you can have your snaphot turned into a "Warhol" for $69.95 canvas wrapped and like they say in the commercials "sofa-sized. " Or perhaps you would prefer an original "Fairey" courtesy of Pasteboard Magazine. To be continued...

Steal this book!

Steal this book! by Abbie Hoffman—I don’t know if you remember this tome about among other things liberating oneself from “corporate feudalism” but it was prescient of today. The imagined corporate feudalism has today become “branding”, and the protectiveness of those brands for profit is impacting our ability to have free speech. You cannot speak about society today or perhaps even express it fully in artwork without suggesting the major impact of brands on culture. Your lawsuit probability may be about 50%.

As I understand it, copyright was made to give creators some benefit from their works during their lifetime and also to promote the sharing of ideas so that science, and in our case art, can move forward and build upon others discoveries. The sticky part comes when it becomes about money and the potential for money made from “derivative works.” The argument becomes then about the art itself and whether it is derivative or “fair use.” And you know what? The decision will be made by someone not currently involved in the art world, someone who may never have had time or inclination to take an art course or even to look at art, that’s right, a judge or jury.

As a former software developer and current artist, I absolutely believe in intellectual property laws but I also don’t believe they have to be used like a cudgel. I don’t think we should be self-censored so we won’t get sued. I don’t think that we should allow our government to trademark common speech like “You’re fired,”

I’m sure you are sick to death about the Shepard Fairey lawsuit but it seems important enough to keep the dialog open. It’s going to run over the next couple of posts, so here’s an art scorecard to start the ball rolling:

Duchamp is not sued by Leonardo DaVinci or by the maker of fine sanitary porcelain.

Warhol is sued by a photographer Patricia Caulfield. Andy Warhol's Flowers were based on a color photograph of blossoms taken by Caulfield which appeared in the June 1964 issue of Modern Photography magazine. When Caulfield saw Warhol's Flowers, she brought a lawsuit against the artist and was offered two sets of Flowers portfolios as payment for use of her work, but she declined the offer and a cash settlement was arranged.

Warhol is sued by a photographer Charles Moore for a photograph of men attacked by police dogs (photo previously published in Life magazine0 which he used in “Red Riot.”

Warhol is not sued by Campbell’s Soup.

Rauschenberg was sued by including a photograph by Morton Beebe in “Pull” one of his important works.

Koons sued for “String of Puppies sculpture, original photograph taken from Art Rogers photograph



Elaine Sturtevant is not sued for appropriating Warhol’s work. Bansky is not sued for appropriating Warhol’s work. ( Sturtevant Marilyn left, Banksy Kate Moss right)

Shepard Fairey is sued by AP and sues also in a pre-emptive strike regarding the photograph referenced by artist for his Obama HOPE poster. The original photographer is undecided. Fairey’s attorneys filed for a declaratory judgment on the matter, seeking to vindicate the artist’s rights in regard to the works he created to support the candidacy of President Obama by arguing that it is protected under copyright law’s doctrine of fair use. The argument is further inflamed by the usual showing of only a heavily cropped version of the original photograph.

In a Huffington Post blog entry, attorney Jonathan Melber describes the four factors used to determine fair use as, “what, exactly, the original work is, how much of it you're using, how you transform it, and whether your new work hurts the commercial market for the original.” Furthermore, he notes, “…the transformation that really matters is the conceptual one, not the physical one.” Indeed, the complaint filed by Fairey’s attorneys contends that Fairey used the photo "as a visual reference," which he "altered...with new meaning, new expression, and new messages."

Check out the US gov's post on copyright and fair use. See what you think...

Same Old, Evolving New

We've posted images of the newsstand by my studio before. It still brings the joy of a constantly evolving artwork. Here are some recent images of the stand including another Shepard Fairey. You have all seen his Obama poster, yes? I purchased one for my younger son, who had the thrill of being a first time voter, having his candidate win and making history all on the same day. Joy #2.

Secret Places

Sometimes you stumble on places that are a mother lode of wonderful images waiting to happen. Certainly if you are in the Grand Canyon, it is not a surprise. Recently we had dinner on a hidden street in New York, Freemans Alley. We discovered an art bonanza. There was even a small Shepard Fairey. Drinks, dinner, art and Andre the Giant. What could be better?