Shepard Fairey's plagiarism battle

(AP Photo/Mannie Garcia/Shepard Fairey)

Remember the Obama painting by Shepard Fairey the Smithsonian bought? The Associated Press claimed ownership of the iconic image of the president, and Fairey pre-emptively sued the AP, asking a federal judge to say he’s protected from copyright infringement claims.

But this isn’t where the story starts. Fairey’s been accused of plagiarism in the past, notably by Mark Vallen in a scathing essay, and Milton Glazer has commented about it in Print Magazine.

Fairey’s also been defended lengthily on the blog SuperTouch. (Michael Surtees is keeping track of all the controversy coverage at DesignNotes.)

What do you think? When does appropriation become plagiarism? When does a nod turn into a shove?

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13 thoughts on “Shepard Fairey's plagiarism battle

  1. Jeannine Cook

    Despite most of us thinking that Fairey has strayed well over the line of fair use, his work is certainly being exhibited in prominent places. Doesn’t that also tell one about the standards of many of those who make decisions in the art world? And isn’t the whole imbroglio really just about money, money, money?

  2. Grace

    Here are my thoughts on the ordeal… that editorial posits that Fairey creates dialogue by putting an old image in new context. But I don’t think many of the members of his audience have any idea where the images came from, making it impossible to extract any meaning from the image other than that it looks cool.

  3. Alan G

    With regard to the editorial, the point is not whether some measure of "ART" and subsequent dialogue is initiated by Fairey’s work. The issue is that Mr. Fairey did not solicit and obtain the legal rights to use the photograph from the photograph’s owner in accordance with current copyright law – whether he intended to do a derivative work or an exact copy.

    In my opinion your referenced editorial used the type language and double-talk that one would use when trying to justify a circumvention of the law. Especially when in this case, the evidence is so obvious that any resulting “debate” is almost ridiculous. Unless, of course, one’s intent is to use the current subject to again, for the gazillionth time, instigate debate on the copyright laws themselves.

    With regard to the editorials desired excuse for infringement by the use of the word “referenced”, it seems to leave room for me to get an on-line copy of “Pride and Prejudice”, move a few words around on each page, title it “Prejudice and Pride” and upstage Miss Austen.

  4. Grace

    Playing devil’s advocate—consider this excerpt from the SuperTouch editorial:

    "Overall, the concept of using reference images in the context of modern art seems to have eluded Vallen completely in regards to Fairey’s art. When he claims that Shepard strips away historical meaning and context in his artworks, he’s missing the entire point of referencing: By taking precisely the elements of an image that speak of its historical meaning and original context and incorporating them into a new image, an artist creates a visual comparison, juxtaposing new and old. Such a contrasting is inherent in the act of referencing, and the intended result is for viewers to consider the relationship of the two images and hopefully spark a dialogue."

  5. Karen Wong

    Where is the controversy. This is clearly a case of plagiarism. Even in beginner’s classes, painters are taught never to use another’s photo. Art competitions forbid the use of another’s photo. It’s clearly AP’s photo. Case cloased.

  6. Carol Everhart Roper

    Taking another’s work and using it as if it were your own is stealing. This is why we have copyright laws, and Fairey absolutely infringed on the ownership of that photo. It’s telling that he has done so repeatedly in the past as well. Is this his way to get attention? Carol Cooper’s comment is well taken – can any of us take a Fairey work and change it a little bit and call it our own without retribution from him? I think not, indeed. As an artist, I find it both arrogant to presume you have the right to use another’s work as your own and pathetic that you are unable to create your own work without stealing from someone else. It is beyond arrogant to sue the original owner of the work for the "right" to steal it! Fairey should be ashamed.

  7. Shannon Christensen

    Fairey’s Composition- the same as AP photo minus the flag, addition of button
    Fairey’s Focal Point – exactly the same as AP photo
    Fairey’s Values – exactly the same as AP photo (check above image in grays)
    Fairey’s Color Palette – different from AP photo
    Fairey’s Contour Lines – exactly the same as AP photo
    Fairey’s Subject’s Gesture – exactly the same as AP photo
    Fairey’s Positive/Negative Space – almost exactly the same as AP photo
    Fairey’s Texture – different from AP photo

    If you can’t make any, or very little, artistic distinction (2 out of 7) from the first created image then I would say that it’s a derivative. Changing the colors and textures does not create an original. On artistic merit – embarrassing for Fairey. Multiple accusations – telling of Fairey.

  8. Timothy Juras

    The excuses or justifications that Fairey uses are totally without morality, or conformity to ideals of right human conduct. Legality of "appropriating" aside, compare his failure to acknowledge his sources to writers and photographers. We would not allow a writer to use another writers work. A photographer who photographed another photographers images and claimed them as their own, would not get paid for his efforts. Neither would be allowed the audacity or arrogance of copyrighting their "appropriation"!
    BTW, I am sure Fairey thinks his ignorant use of the word appropriate gives him some credibility, or to escape the definition of plagiarism. Here’s how Meriam-Webster defines "appropriate". Etymology: Middle English, from Late Latin appropriatus, past participle of appropriare, from Latin ad- + proprius own; 1 : to take exclusive possession of.
    Here’s another popular word used in reference to his works. From Meriam-Webster; Main Entry: derivative, Function: adjective 1 : formed by derivation, a derivative word 2 : made up of or marked by derived elements 3 : lacking originality : banal.
    Last, but not least; Main Entry: plagiarize: transitive verb : to steal and pass off (the ideas or words of another) as one’s own : use (anothers production) without crediting the source. intransitive verb : to commit literary theft : present as new and original an idea or product derived from an existing source.
    Those definitions make it rather clear. Also consider; it is not a random or rare instance of plagiarism. The bulk of his work is "appropriated" from someone other than him. I have not seen any original works. Let us see something entirely conceived and drawn by him!
    Personally, I find it disgusting, and inexcusable, to defend his arrogant theft. We have reduced the concept of art to "spend 5 minutes in photoshop with another persons’ work"! Worse than that is to allow him to copyright the "product". What message are we sending our children who may inspire to be artists?

  9. Alan G

    The issue of ‘copyright’ has always been an issue of contention in many applicable circles and will certainly continue to be so. There is always reference to the ‘gray area’ surrounding copyright infringement and where there is not apparent gray area, some wordsmith will try to create some to support their claim.

    Several in the debate hold Andy Warhol as a shining example of infringement run amuck. The only reason Andy Warhol escaped the ire of Campbell’s is that they finally decided it was more beneficial to their ‘bottom line’ to leave him alone. Although in his case, I would have liked to have seen how that case turned out. His using a commercial product as a subject is much different than using a unique photograph of the subject.

    I would think that anyone in the arts would know, short of Miss Jones’ kindergarten students, that what Shepard Fairey did was simply a blatant infringement of copyright. Nevertheless, the debate will go keep on going, and going, and going like the “Copyright Infringement Bunny”!