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Fair use vs. Fairey's use

Posted by Dan Wasserman  February 5, 2009 08:39 AM

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obamaphotoap__1233812248_1440.jpgShepard Fairey has made a habit of using other people's artwork without attribution. (see earlier blog post here) The practice has now attracted attention beyond the artistic community. The Associated Press wants credit and compensation for the Manny Garcia photograph that Fairey copied for his Obama HOPE poster. Fairey doesn't dispute that he used the photo, but his lawyer is claiming that "fair use" law protects Fairey from the need to pay or credit AP and its photographer.

2/5 Dan Kennedy at MediaNation gives his thoughts on the AP infringment claim. He cites the fair use exception for parody. I'm not sure the parody claim would work in the case of the Fairey Obama poster because I don't detect any ironic or parodic intent. This case seems closer to the Jeff Koons case decided in favor of the photographer who took the picture that Koons copied to make a sculpture. The case (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).) is summarized on the Stanford University Library website which offers a good primer on fair use law.

2/6 Dan Kennedy responds:

"Dan -- I probably wasn't as clear as I should have been. I did not write that Fairey was covered by the fair-use exception for parody. I wrote that he was covered by the fair-use exception for transformative works, and I used parody as an example. The Three Stooges case I mentioned specifically cites Andy Warhol's Marilyn Monroe montage as a transformative work that would be covered by fair use, and I think Fairey's Obama poster is very similar to that."

UPDATE 2/5 Matthew Reed Baker at Boston Daily describes the breathless reception for Fairey at the ICA opening and then defends Fairey's use of others' images. I think his argument hinges on the audience knowing Fairey's references, and many of them are so obscure that no average viewer would know that they weren't Fairey's creations.

UPDATE 2/6 Fairey threatened legal action against a Texas artist for parodying his Andre the Giant image.

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Dan Wasserman has been cartooning for the Globe editorial page since 1985. He has published two collections of drawings, "We've Been Framed" (Faber & Faber, 1987) and "Paper Cuts" (Ivan R. Dee, 1995). His cartoons are widely reprinted and are syndicated internationally by Tribune Media Services. He draws more quickly than he types.