Art, Attribution, and Shepard Fairey

In early February, the Associated Press accused artist Shepard Fairey of copyright infringement in failing to credit photographer Mannie Garcia for the image on which the now iconic Obama portrait was based.

Before the A.P. could sue Fairey, however, the artist beat them to the punch with a lawsuit of his own.

Fairey's lawyers stated that he shouldn't be forced to receive "misguided threats from The A.P." In an interview with NPR's Terry Gross, Fairey seems to imply that the A.P.'s allegations were harmful to his reputation as an artist. This would appear to be the main motive behind the preemptive legal action.

Garcia, in an interview of his own with Gross, cares most about Fairey's lifting the photograph off the web. "Simply because it's on the internet doesn't mean it's free for the taking." In the New York Times, Garcia again brings up the issue of the web. “I don’t condone people taking things, just because they can, off the internet.”

The real issue at hand, behind the damaged egos and internet anger, seems to be one for the art majors to debate: How much does an image need to be changed for it to exist as a work of art in its own right, not merely as an altered version of an existing image?

Famous art of the past jumps to mind. Take Warhol's Campbell's Soup Cans. Should the credit for these paintings go to Warhol or the original designer of the labels? After all, there would be no Warhol painting without the original label layout.

Or take Marcel Duchamp's L.H.O.O.Q., a postcard of the Mona Lisa with a mustache drawn on and those mysterious letters written underneath. Duchamp didn't much alter the original painting, and certainly less than Fairey did Garcia's photograph. So, was it Duchamp's right to call the product his own work?

It becomes tricky terrain when the worlds of attribution and art start to mix. Nearly all art is based on some sort of preexisting image. What if everyone who's been portrayed in a painting files suit against the painters? What if the manufacturers of the myriad products appearing in photographs on Flickr sue the photographers? Follow this path and eventually there exists no art.


What does seem fair is that Fairey should pay the applicable licensing fees for using A.P. media, just as any major organization would. Beyond that, no damage claims should be filed on either side. Fairey's use of the image doesn't hurt the Associated Press, and they haven't done anything to seriously damage Fairey's reputation. The portrait in fact ups the profile of both parties involved.

Perhaps, too, Garcia should be happy (after receiving the usual compensation from the A.P.) that one of his photographs played such a major role at an important time in history.

Oh, wait, he already is.

“If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”

So... why are we still arguing?