Thursday, February 05, 2009

The Shepard Fairey controversy: Aesthetics and the Law

My pal cartoonist Mark Martin (check out his Crazy Boss) recently sent me a link to this article:

to be found here.

I'm actually not a big fan of Shepard Fairey but did like the iconic quality of this image and am intrigued by the impact its had. I do remember wondering about this--where the original photo came from. I do think it's fair use.

The photo from which Fairey's image was taken was a widely circulated news photo. Fairey wasn't keeping this fact a secret.

The Rosie image that I based my image on is in public domain--anything without a copyright notice up to 1973 is in the public domain, and according to the admittedly not always reliable Wikipedia, Rosie falls under that category. But I think I should be able to make this kind of image even if it were copyrighted. Even though it's not a parody, I think it should fall under the same rules of protection. It's not an altered image, but a new work based on an existing image--it was turned into something else that's original and unique. There's no objective measure for what this means. It's totally aesthetic and based on criteria that can't be quantified. Where do you draw the line? That's the problem. It's hard to attach a logical rational legal definition to an aesthetic concept.

Obscenity laws present similar issues. The whole, what's art, what's prurient thing. A question that's totally rediculous to begin with--if the prurient appeal of a work is anathema, what's art and what aint just can't be determined by rational means. There's just no objective measure. Making art is a non-rational (not to be confused with irrational) activity, often done for rational reasons, but producing it and interpreting it is intuitive. Love, faith and aesthetics--rationality just doesn't apply.

Now if you appropriate an image and change it in a subtle way or appropriate an image outright for commercial gain, in my opinion, that shouldn't be allowed. If you duplicate a distinctive design and use it in a commercial context I don't think that should be allowed. I don't have any definitive criteria for this--it just seems morally wrong to me.

But then, on the other hand, I love that stuff like this exists:


And I think the world would be a poorer place if it didn't, and if the Indian versions of Superman and Batman didn't exist the world would be a poorer place, likewise some of the stuff on youtube that's derived from other sources, and an even poorer place if Indian knock-offs of AIDS drugs didn't exist--all stuff that could easily be said to fall under the laws of intellectual property.

Hustler magazine is art I don't care for as well, but I believe in its right to exist. I think child pornography shouldn't exist because I object to it morally and have no interest in it aesthetically, but not because it doesn't have aesthetic value. Aesthetics isn't a moral issue. What I mean by "value" is important to define here as well, because I mean value in the sense of a value ascribed to something--in the case of mathematics, in a rational sense: positive 5 has a positive value-- in the case of art, in an aesthetic sense which is completely non-rational and impossible to define logically. These values are not qualitative in a moral sense, but qualitative in a descriptive sense. This is not to say that it is "good" art, but that it is an aesthetic object,( even if just barely) rather than a purely utilitarian one. But then some people would argue that a hammer is an aesthetic object. So is art always something made, or can something become art just by the act of recognizing an aesthetic quality in the thing?

But that's a whole different issue.


  1. Is he making money for the illustration? What i really resent is that he didn't ask the photographer for permission to use the picture. He's such a big shot it wouldn't have made a dent in his "street" artist coffers to pay a license.

  2. I'm still holding that it's fair use. Fairey's image is much more iconic and has had a much greater impact than the image from which it was based. That image on it's own is a pretty basic press portrait.

    If he loses this would be a really negative precedent for artist's in general. Just for starters, it will be illegal then, for artists to use press photos to base their portraits of public figures on when using those photos as reference to illustrate an article or editorial piece. Now you can use multiple photo's as reference and come up with a kind of composite, but it's very hard to do. So then any artist who wants to portray a public figure will then either have to pay to license the photo, or will have to take their own photo.

    It just gets messier from there.

    This case isn't just about Fairey's image. If you don't like the way he makes his art, if you resent that he's made so much money from the image, don't let it get in the way of the underlying principal that's being defended here, which is the right to fair use.

  3. It may be legal, but it's pretty arrogant, considering how he has sued other artists for the same thing and he certainly had the means to contace and communicate with the photographer. Photographers are artists too.

  4. Ok. I've pretty much gone over all of this. And really, he hasn't sued anyone for "the same thing". And it's true, photographers are artists, but I went over all that too.

    I appreciate your feedback, but I can't see how at this point there can be any more question about how I stand on this issue. At least none that you've presented. Just read what I've written.

  5. I moderated a recent comment because I don't accept anonymous comments--I feel people need to take responsibility for the things they say. Aside from this, I feel the comment was a redundant one that wasn't particularly observant of the arguments I had already stated.


    "Fairey's image was not an altered image, but a new work based on an existing image--it was turned into something else that's original and unique. "

    The author of the anonymous comment may have a contrary opinion, but no one has yet presented an argument that is particularly observant of my previous statements. I presented what I feel is a detailed and comprehensive argument that states my position clearly, and if you would like to identify yourself and present a contrary argument, you are welcome to do so, but if you want me to pay attention, I suggest you read my own comments carefully before doing so.

    But maybe you're not particularly interested in what I think, And that's Ok too.

  6. Point - Fairey has stated over and over that he made no money from the Obama "Hope" poster or image - any money from sales went back into making posters and stickers that were donated to the Obama campaign.

    I agree that this seems like fair use - he took a small section from a larger image (the original image focused on George Clooney, not Obama) and changed it in a profound and recognizable way. Say what you like about Fairey's art, but he is on the right side of this issue.

  7. Even if it was just a portrait of Obama, and not Clooney (I didn't know about this by the way) I still think it's fair use. Though it's great that he chose to donate the proceeds to the Obama campaign, I don't feel he had a moral obligation to do so. If he chooses to profit from the image, I have no problem with that either.