Shepard Fairey Sentenced to Two Years of Probation in Hope Poster Case

by Jason Horejs on 09/15/2012 · 13 comments

Just in time for the next election, artist Shepard Fairey was sentenced last week to two years’ probation and ordered to pay a $25,000 fine in relation to his copyright infringement case for using an Associated Press photo as inspiration for his Hope poster of then Senator Barack Obama. Read about the sentence and the case at LATimes.com. The article makes it appear that Fairey was sentenced for criminal contempt – not for the copyright infringement.

Do you think the punishment fit the “crime”. Was Fairey in the wrong using the imagery from the AP? Sound off in the comments section below.

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Jason Horejs is the Owner of Xanadu Gallery, author of best selling books "Starving" to Successful & How to Sell Art , publisher of reddotblog.com, and founder of ARTsala. Jason has helped thousands of artists prepare themselves to more effectively market their work, build relationships with galleries and collectors, and turn their artistic passion into a viable business.

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{ 13 comments… read them below or add one }

Melinda Patrick September 15, 2012 at 9:37 am

Wouldn’t we all like to have free access to any photos taken by anybody. As artists we all guard our work so we should have empathy for AP. Clearly, Fairey used the image owned by AP without regard for copyrights. With their bank of lawyers, I think Fairey got off easy.

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Nadi September 15, 2012 at 10:06 am

Yes, he was wrong. He copied a photograph taken by another person, without that person’s permission. Clearly copyright infringement. I am appalled at the number of artists who don’t respect this law. Some art teachers are actually showing their students how to take a photo from a magazine and then how to copy it. I believe, as an artist, it is your responsibility to know the law.

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Rich September 15, 2012 at 3:10 pm

Without knowing the contempt case all I can say is that in Canada it`s a federal crime and quite serious because it`s a crime against the “Crown“. But I`d say he`d done enough to the AP photo to make it an original work of art.

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Karen Baker Thumm September 16, 2012 at 8:37 am

Yes, I think he was in the wrong to have infringed the AP copyright. Yes, I think the punishment fit the crime, especially since he benefitted financially from sale of his image.

If we don’t stand up to copyright infringers with a firm hand, or fist, the infringements will just continue and proliferate. I just wish it weren’t so difficult for us small time artists to protect our intellectual property in court, like corporations such as the Associated Press can.

Having been infringed many times, this is my short answer, but I could rail on and on about the subject.

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Kim September 17, 2012 at 4:13 pm

A few years ago I had a booth of my work at a local art fair. An artist two booths away from me had a very large painting of a mother and child as the center piece of her whole booth. She had taken the image from one of my images off my website and then lied about where she got it, claiming she found it on a royalty free site… not true. It was a very specific ethnic background and pose and lighting was all the same of a mother with her newborn son. I was stunned. She took the painting down and I reported her to the show organizers. Not only did this painter infringe on my rights, but also those of my client who did not give the artist permission to reproduce her image or likeness, as she had given to me.

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gregory aliberti September 17, 2012 at 6:09 pm

Please, why shouldn’t he appropriate the published image? He severely altered the photo making it his own. Photographers grab images from all around themselves. Did the AP ask to take the senator’s likeness for their own profit? Should Campbels of sued Warhol for the use of the cans? It is simular to a musician getting a sample of a sound for a song. We all need to make a living but journalism isn’t art. The hope poster is art more than the sum of it’s parts.

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Randy Harris September 18, 2012 at 9:57 am

I’m with Gregory. A great deal of Gauguin’s work was from appropriated images, postcards and carvings. If the original is altered significantly, I feel a small amount of appropriation is not plagiarism, but inspiration. I’m inspired by others and it’s not only all right, but flattering, if they’re inspired by me.

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rachel citrino September 18, 2012 at 10:28 am

Can we be arrested for whistling/humming someone’s recently published and copyrighted tune??? WTF

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Alan Heuer - Landscapes of the West & Beyond September 18, 2012 at 12:39 pm

Zazzle removed the prints of my painting “The Other Side of Oz” (and associated products) from their website as Warner Bros. claims my painting it infringes on Warner Bros. intellectual property even though L. Frank Baum’s book “The Wonderful Wizard of Oz”is in the public domain. I have since renamed the painting “Once Upon a Time in Taos” and added old pickup trucks to distance myself from Warner Bros. and their infringement on my right to fair use.

More about this on my website. Here’s a link: http://www.theartistswindowonline.com/Artwinweb%5CArtWin.nsf/Template_1_Link_8/02182007_054512

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David Copson September 20, 2012 at 6:25 pm

Artists take inspiration from anything and anywhere. Are collage artists guilty of copyright infringement? No. Warhol Lichtenstein? No, courts ruled that their use of other artists work was changed sufficiently and the intent different and so was fair use. Many artists keep files of clippings to use for reference and I have seen very good paintings that have clear debt to published photos. Theft? I don’t think so. If you paint a picture of a garden, do you owe the landscaper for use of his design? If you take a great photo of a building, are you stealing the architect’s work?

Calling yourself an artist does not make you immune to being accountable for using the work of others. There is a line between stealing and fair use. I think this was fair use.

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Parson Allens October 25, 2012 at 9:46 pm

It was fine he used it, that’s what he does. Likewise, he knows when he gets caught he has to deal with that too, he’s smart. He knows what he’s doing, it’s all part of that game. It’s performance art that goes beyond the gallery walls; making the news; using the mass media as a medium to hype yourself. It’s that old-school ‘pop will eat itself’ thing… Yawn.

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CSchnackel February 13, 2013 at 8:13 pm

Just discovered this post, wish I’d seen it when it was new! This is a good example of artists needing to know what the copyright laws ARE, rather than assume. The US Copyright office has a good FAQ page, http://www.copyright.gov/help/faq/

Jeff Koons was also successfully sued I believe, for a “string of puppies” sculpture that was done from someone’s photo, without permission. Sometimes the reason one artist ‘gets away with it’ is not that it wasn’t infringement, but the owner of the original material didn’t, or couldn’t afford to, sue. So the lesson is, get permission in writing. And why copy anyway? We should all be capable of doing original work.

I, too, have dealt with a lot of infringement of my work. It takes up my time, is stressful, causes confusion over who really did the artwork, and potentially causes loss of sales or loss of other opportunities like licensing. I mostly paint and draw. I have done three or four pieces based on a photo, WITH the photographer’s written permission. I do collages occasionally, mostly using my own drawings on old newspapers. I’m careful what I use, how much, and how. I don’t recall the title of it, but there is at least one book and probably numerous blog posts, on how to avoid legal problems with collage. It can take awhile to get the hang of what the difference is, between derivative art (illegal without permission of the owner), and transformative art (legal), but sometimes these things are decided in court. Who can afford that?

I would be interested to hear Jason Horejs’s view on this, as a gallery owner. Would he feel an artist’s work could be devalued due to infringements on it?

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Gwenn February 18, 2013 at 10:06 am

I don’t believe artists when they pretend they’ve never been inspired by someone else’s work. Creativity doesn’t work in a vacuum. And that means that ardent support of copyright law is always at least a little hypocritical.

It’s important to note that this criminal sentencing has nothing to do with copyright infringement but with the way Fairey reacted to the original lawsuit. And that original civil case was settled out of court over a year ago with the AP, without either party surrendering its take on copyright and fair use.

Furthermore, the copyright suit was not between Fairey and another artist, but between Fairey and the AP which claimed copyright of the image. The person who actually took the photo, Mannie Garcia, did get involved in the suit at some point, but I think it’s illuminating that, despite all the attention given his photo, Garcia’s name is still unknown to most people.

Copyright law as it stands today does not reflect the values of most artists. Every single work created gets 100+ years of protection. Art is locked down for far longer than your lifetime. Does that seem necessary? Or good for creativity?

I, for one, see more fruitful ways to reacting to work that’s similar to yours:
http://www.gwennseemel.com/index.php/blog/comments/react_work_similar/

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