Poll: Did Shepard Fairey Break the Law?

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So just when we thought our favorite bad boy street artist was settling down a bit, playing nice in support of a political candidate for the first time and going mainstream with his work now in the National Portrait Gallery and the Institute of Contemporary Art in Boston, Shepard Fairey, the artist behind the "Hope" image of President Obama, finds himself in trouble again.

An update: On February 4, the Associated Press claimed that he infringed copyright by cribbing a photograph of Obama taken by AP photographer Mannie Garcia in 2006. Fairey argues that the photo was merely a jumping off point for his piece, and that his work is protected by the Fair Use statute, which condones limited use of copyrighted material to make original art. (My question is if the AP feels this way, what took them so long to file the claim? The image has been plastered everywhere. They’re a little slow to the punch.)

Now, Fairey has sued the AP for the accusation. Oh, and to stoke the fires, the artist was arrested last Friday night in Boston for tagging his images on buildings. He left some 750 in waiting for a lecture he was scheduled to give that night at the ICA.

Shepard Fairey's "Hope," courtesy of National Portrait Gallery

It’s been a topic of discussion here. I checked in with our photo editor Bonnie Stutski to hear her take on whether Fairey used the AP photo fairly.

"Copyright law has a lot of gray areas, and they can be resolved by negotiations between the parties or by a court case," she says. "To me, it does seem like he should have gotten some permission from the AP or the photographer."

She pointed me to an article from a 2004 issue of The Picture Professional, a publication of the American Society of Picture Professionals (ASPP), in which Joel Hecker, a respected attorney in photography law, and Jane Kinne ASPP's legal chair addressed the question of whether an artist's rendering another's image in a different medium is grounds for infringement. Hecker said that it is largely up to the lay observer and whether he or she considers the images too similar when compared side to side, and notes that altering say a black and white photo to color isn't usually enough to deem the latter an original. But what about when the second work is only based on a portion cropped from the original image, as Fairey claims (and bloggers at Photo District News doubt)? Does that present a striking enough difference? There are so many questions. In the article, Kinne warns that "Skirting too close to the line in copyright is dangerous"—something Fairey is learning the hard way.

We here at Smithsonian like to play it safe. For a photo-illustration of Thomas Edison holding an energy-saving light bulb that accompanied Richard Conniff's story "Let There be Light" in Smithsonian's May 2007 issue, for example, Stutski provided the illustrator with two stock images (one of Edison and one of the compact fluorescent lamp, or CFL) to combine, but first got permission and paid the stock agency to use the images as art reference.

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