Fairey is being sued and challenged by the AP over fair use practices regarding his popular Obama Hope image. But as you can see above, Fairey has a counter claim against the AP for using ‘his’ images as theirs.
Read Fairey’s comments. You can also read the counter claim PDFÂ or his lawyers comments. Interesting stuff.
I was worried about Fairey losing this case, but it looks like he has the AP in a corner on this one.
When Folkarts traces a cartoon it is bad, but when Fairey uses a paint-by-numbers concept on another artist’s (or perhaps I should use the term photojournalist’s) work it is ok?
Personally I think the guy is dead wrong. That doesn’t give the AP the right to use his images either of course, but as to the initial claim that he used an image improperly I think that still stands. Otherwise why couldn’t I take a print of a Warhol image…draw some funny eyebrows on the faces with a sharpie, and then pawn it off as my own work?
Seems silly to me.
Otherwise why couldn’t I take a print of a Warhol image…draw some funny eyebrows on the faces with a sharpie, and then pawn it off as my own work?
Why couldn’t you?
You can, and that is how fair use works. First you have to realize that Fairey did not TRACE a photo or try to pawn off the photo as his own, that is plaigirism. He produced a freehand and unique piece of artwork using a photo image as his model. Secondly, Fairey never expected it to be used to way it was. I do think that the AP does deserve to be paid a royalty fee, but that is not what they want. They want to end Fair use as we know it. Not only do I think this would hamper creativity I think it sends a chilling message to artists that ‘Art can no longer inspire Art’, or you will get sued by a greedy Media corporation. And that’s just silly.
So then what Folkarts did should be considered fair use then?
His version of the shell game cartoon is probably shows more differences than Fairey’s image does from the original photo. Sure Fairey might have said he created it via freehand, but it could have been a projection onto a piece of canvas.
Maybe it is one thing to acknoledge the original creator, but I fail to understand why it is ok for Fairey to essentially paint over a photography (figuratively, not literally) while someone who covers a song has to pay royalties from the profits of that song. What is the difference exactly- aren’t they are both based upon someone else’s original work?
I’m not asking a rhetorical question here – I’m actually wondering.
No, because Folkarts was trying to pass off Oliphiant’s work as his own without crediting Olphiant. Like I said before, it would have been fine if he would have said something like ‘Inspired by Pat Oliphiant’
The other thing you have to remember was Folkarts was tracing a cartoon to create another cartoon. Even if Fairey ‘traced’ the AP’s photo, he still wasn’t creating another photo out of it, and he clearly changed the work over 40%.
And with cartoons (unlike just an image without typography) you start getting into intellectual property, etc, etc.
The sad part about what Jason did was he could have done it differently too. In other words instead of tracing Pat’s toon, he could have drawn a whole new one and he also would have been fine to without crediting Olphiant.
It’s an interesting tightrope. If I am ever in doubt of images I am using (like Rockwell for instance) I always credit them on the toon. I have probably screwed up a few times, but since I haven’t sold anything that I have ‘borrowed’ it really doesn’t matter. It is like the HOPE image. If Fairey’s image wouldn’t have raised millions for Obama’s campaign, AP wouldn’t give a shit.