FAIR USE WEEK February 23-27 (Part 2)

Yesterday we asked if you thought artist Shepard Fairey could claim “fair use” for his use of an Associated Press (AP) photograph for the basis of his art, the Obama “Hope” poster. The answer is rather complicated. Fairey’s case was settled confidentially out of court in 2011, so we’re not sure if he had to pay the AP for his use of their photo.

However, Fairey definitely lost a second case related to the issue. The artist plead guilty in 2012 to destroying and fabricating evidence during the first case. Fairey was not only fined, but he also had to serve probation and do community service (New York Times ArtsBeat

I have to think that at some point Fairey might have been aware that he was violating copyright. Learn from Fairey’s mistakes, and check with your reference librarian if you have any questions about fair use or copyright. The Center for Media and Social Impact has just released a code of best practices for fair use in the visual arts which may also be useful (

Elizabeth Ramsey,
Reference & Instruction Librarian

1 comment:

D, Was Blue, Now Purple said...

I actually doubt that Fairly thought much about his appropriating of the AP photo for the "Hope" poster, because he did a similar thing with a photo of Andre The Giant in his "Obey" work, and street artists, usually anonymously, often appropriate other works. His subsequent lying and destroying evidence is after the fact, to protect himself, and he paid the price for those acts.

This old Slate article is worth reading on this topic.

In an age of sharing of all types, file-sharing, ride-sharing, etc., a future artist will likely simply release such an image anonymously. It is also quite hard to imagine that, given fair use law, that is, "(4) the effect of the use upon the potential market for or value of the copyrighted work." (http://www.copyright.gov/title17/92chap1.html#107), that Fairey stole some value of the original image. In fact, he created additional value in the original image that was not in the original image.

Of course, in this case, the dispute was about who should receive compensation for the value of this final work of art, not strictly about "fair use," such as used by a journalist or other person who would appropriate an image for "fair use."

It is an interesting case, but certainly copyright laws are quite a bit weaker in a world where many things can be appropriated, and anything can be released to the world anonymously. As usual, the laws will probably have to change to adapt.