Shepard Fairey: Copyright Hypocrite

Hmmm... my first reply did not show up at first. Excuse the two replies.

You are aware that Orr is still selling his parody? Fairey dropped the issue because 1.) it made him look like a hypocrite 2.) he knew he did not have a case. It is a good example of "fair use" since Orr created 'Protect' as a parody of Obey Giant and as a social comment about Shepard Fairey's status-- and hype.

Square Zero, it might be good for you to know what you are talking about before commenting. There is "fair use" under both copyright and trademark law. Shepard Fairey knows this-- he has used trademarked logos in his work as parody.

Here is my take on the Baxter Orr / Shepard Fairey issue:

http://www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

I feel that Orr's parody is a better example of "fair use" than Fairey's posters.

Balhatain, the fair use exception is far narrower with trademarks that it is with copyrights (check here for an explanation). Baxter and Shepard Fairey are in pretty much the same business -- that makes proving fair use much more difficult (imagine if Coke release a soft drink a parody of the Pepsi logo for a label).

You do realize that Baxter Orr is still selling his parody of Obey Giant? Fairey backed off because it made him look like a hypocrite and pointed out contradictions that have shadowed his career. My guess is that he realized he did not have a case. After all, Orr's poster is a good example of parody as well as a social comment about Shepard Fairey's status-- and hype.

Just read through the whole Austin Chronicle article and noticed the date. Doesn't mean he didn't have a case. Also, it doesn't change the fact that protecting a trademark is not the same thing as protecting a copyright -- though perhaps you are right that it made him look like a hypocrite (regardless of whether the label is justified).

Look up Tom Forsythe vs. Mattel. In that case the judge sided with the artist. The court found that it is important to be critique cultural icons. Obey Giant is a cultural icon, is it not? That does not mean that it is written in stone-- still, don't think for a second that a trademark is off limits.

Balhatain, my point is not that there are no fair-use exemptions in trademark law, but that the requirements for the fair use of a trademark are different from those of a copyrighted work. The Tom Forsythe vs Mattel case involved parties in different areas of commerce (Forsythe was not making dolls for sale, after all, he was taking photographs). Whether something is a "cultural icon" is not enough; to be granted fair use you have to prove that market confusion is unlikely.

BTW, my studio just did the graphics for Trojan Barbie at the ART, and we certainly took advantage of the Forsythe decision.

I do know the difference between a trademark and a copyright. It doesn't change the fact that the original Obey Giant image was itself swiped from a copyrighted source and that the C&D letter is evidence that Fairey is more interested in turning a buck than in artistic expression.

When you start comparing supposed artworks to the logo of Coke or Pepsi, especially when the artist in question is also a supposed counter-cultural, capitalist critique guy, doesn't it start to feel like bullshit?

I do know the difference between a trademark and a copyright.

Not when it comes to the requirements for fair use. For all intents and purposes, Baxter is a competitor in the art marketplace (he sells prints, after all, just like Fairey). As such, the potential for consumer confusion is very high. It doesn't matter that the image has been altered for "satirical" purpose; in fact, that makes it worse, since Fairey is know for doing exactly the same thing. I should add that had the image been published in a magazine as commentary, Baxter would have stood in much firmer ground. Ultimately, the dispute was not about art, but about business (which is why I brought up the Coke/Pepsi issue).

When you start comparing supposed artworks to the logo of Coke or Pepsi, especially when the artist in question is also a supposed counter-cultural, capitalist critique guy, doesn't it start to feel like bullshit?

Rick, Fairey is an artist, a graphic designer, and a business man; he makes no bones about it, and his work regularly skirts the edges of all three disciplines. After getting a fair amount of exposure to the contemporary art world, his approach strikes me as refreshingly honest. I think there's plenty of reason to criticize his work (his appropriation of the work of relatively unknown Cuban and Puerto Rican graphic artists, for example), but I just don't think he's a hypocrite.

I should say that, as the designer for the ICA, I'm not an uninterested party. Still, I feel the issues Fairey raises deserve a bit of nuance.

Square Zero, it is extremely presumptuous for you to declare what I do and do not know about the law. If you noticed, I have refrained from discussing the legal merits of either case. I would suggest that you, as a mere designer, do the same. Nobody, not professors of media law, not lawyers with dozens of copyright litigations under their belt, can say with certainty how these cases will turn out.

Whatever the legal merits of the case, it is a rather sinister contradiction for a man who has made his livelihood and fame appropriating the work of others (and, as you astutely point out, putting his own brand name on the work of unknown graphic designers) to bring legal action against another artist who does precisely the same thing, whether it's a trademark or a picture of Shepard Fairey's mom. To suggest otherwise is to enter into a discussion of legalistic minutiae that would not withstand other claims that Fairey might make, on the free use of public space, for example. It's extremely craven to hide behind one law, that makes you money, while flaunting others that you find restrictive.

And, at the very least, it's not very punk rock.

Square Zero, it is extremely presumptuous for you to declare what I do and do not know about the law.

Fair enough. Then again, it is also extremely presumptuous of you to declare me a "mere designer" (since you know nothing about my background).

If you noticed, I have refrained from discussing the legal merits of either case. I would suggest that you, as a mere designer, do the same.

I wouldn't venture a guess as to how these cases would fare in court (or whether they would even make it there). My point is that for Fairy to protect a business asset (which is what his trademark is) does not necessarily make him a hypocrite in the Obama/AP case. The law that protects his trademark is different from the law that protects the AP's copyrighted work; the two are conceptually, legally, and ethically distinct. It is possible to agree with one and disagree with the other. (Now, where he to bring action against the myriad of Obama/Hope parodies out there, then I would agree that he's a hypocrite.)

...it is a rather sinister contradiction for a man who has made his livelihood and fame appropriating the work of others [...] to bring legal action against another artist who does precisely the same thing

Rick, as you probably know, trademarks are not granted automatically. They are sought, at great expense to the owner. It makes no sense to get one if you do not intend to protect it (in fact, a trademark can be lost if not defended). You can certainly argue that for Fairey to seek trademark status for his version of the Andre image is "a sinister contradiction"; threatening legal action against a trademark infringer seems to me perfectly consistent. (Besides, as I argued above, what Baxter Orr did with the Andre image is not "precisely the same thing," legally or ethically, as what Fairey did with the AP photo.)

And, at the very least, it's not very punk rock.

At the risk of once again being presumptuous, if you actually believe that statement, you really know nothing about punk rock. (Read up on Malcolm McLaren, for starters.)

Fair enough. Then again, it is also extremely presumptuous of you to declare me a "mere designer" (since you know nothing about my background).

Missed this part. Most definitely.

I think that it would be fair to say that Malcolm McLaren and I are operating with a different definition of punk rock.

I continue to disagree that these cases are "conceptually, legally, and ethically distinct," and, if they are, it doesn't let Fairey off the hook for being a hypocrite.

Conceptually: Andre the Giant was a trademark of WWF (now WWE) that Fairey swiped, used for years to establish his name, and, finally, transformed into his own logo, absent the word "Giant," which the WWF refused to let him use. Where's he getting off coming down on a fellow artist who's trying the same gambit? It's a power play, pure and simple.

Not only that, in my mind, as a spectator, the "OBEY" logo compromises Fairey's art to an absurd degree. As gifted as he is with color, or as a designer, I can't look at his prints without honing in on "OBEY," and cringing. I don't like feeling like I've been cheated. I guess Fairey and McLaren have more in common than I have with either of them.

Legally: I'd point out that the C&D letter invoked 17 U.S.C. 101, the chapter on copyright, and not 15 USC, which is the section on trademark. The trademark argument is not one that Fairey or his lawyers were making, so you might be more productive lambasting them, rather than underpaid bloggers, about the difference between trademark and copyright.

Moreover, fair use, as a concept, can be applied to trademarks, just as it can be to copyrighted works. And the irony that OBEY Giant, itself, is a derivation of a trademark does not bode well for your case against hypocrisy.

Ethically: It's not like Orr set out to trick people into thinking that he had a line of skating gear, hipster apparel, and "information about rebellious teen lifestyle activities" (that last bit from the actual "Obey" trademark), which would be a more ethically nefarious purpose than simply making fun of Fairey, his artwork, and his nauseating self-importance, which is the sort of thing that a younger Fairey would be down with. That's the strong case for trademark over copyright, after all, and I see no reason why somebody would confuse Orr's poster with Fairey's Obey empire.

That's the strong case for trademark over copyright, after all, and I see no reason why somebody would confuse Orr's poster with Fairey's Obey empire.

I actually do see a potential for confusion, particularly once the poster goes out into the wild, as it were, without Orr's attribution. But, if you are right that Fairey's lawyers sought a copyright claim -- rather than a trademark claim -- then his action is certainly inconsistent (and makes my point kind of moot).

As gifted as he is with color, or as a designer, I can't look at his prints without honing in on "OBEY," and cringing.

For better or for worse, that reaction if very much in line with Fairey's project (as I understand it).

It might be a good idea for you (and Dan Wasserman) to look up the difference between a trademark and a copyright -- they aren't the same thing, though sometimes people use the terms interchangeably. Fairey is not being hypocritical, though the accusation sure makes good copy.