Shepard Fairey Speaks Out: Plagiarism or (Unattributed) "Reference"?

Our old friend, street artist slash vandalist slash conspiracy victim Shepard Fairey speaks out on his own site and in the Huffington Post about his alleged copyright infringement in using an AP photo to produce his now-infamous posters of Barack Obama. Fairey continually uses the word "reference," and points to great artists who worked from photos. However, Fairey doesn't clarify how he used the photo: was he just glancing at it as he worked, or did he (as it almost looks) just Photoshop the original image to come up with "his" artwork? And if he did "just" Photoshop the image, is that sufficient artistic contribution to constitute originality?

Fairey argues that the purpose of his poster transforms the purpose of the original image, so they don't compete, and his appropriation of the image is essentially fair use: "My Obama poster variations of "HOPE" and "PROGRESS" were obviously not intended to report the news. I created them to generate support for Obama; the point was to capture and synthesize the qualities that made him a leader. The point of the poster is to convince and inspire."

Somewhat pompously, Fairey gives himself major props for his role in electing Obama—"I am glad to endure legal headaches if that is the trade-off for Obama being president"—and raising awareness of Mannie Garcia's image: "In fact, the argument has been made that the reference photo would have faded into obscurity if it were not for my poster which became so culturally pervasive." He neglects to mention that he did not give Garcia credit for his image until stirrings about copyright violation forced him to do so.

Perhaps most disturbingly, Fairey asserts, "I do not think permission, or a collaboration is warranted in every case where an artist works from a photo reference. I collaborate with photographers because I WANT to, not because I believe I HAVE to." Whether or not Fairey "has" to derive his works from other works (which he almost always seems to do), the definition of collaboration involves, well, collaboration—the active participation of all parties, not the use of others' work without their consent or knowledge. We realize we're living in a "remix culture," but part of the remix ethos involves using artists' work in ways they want it to be used, which usually includes giving proper credit. Fairey himself did not give credit to Mannie Garcia for use of his photo until pressed by copyright criticism, and has in fact asked others to stop using his work as inspiration for their own. So why is Fairey allowed to shut others' art down without being subject to criticism himself? Even if he's not a copyright infringer, Fairey is at minimum a hypocrite more concerned with his own image than with art.