UPDATE 02.09: In federal court in Manhattan, Shepard Fairey filed suit against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of an AP news photograph as the basis for his iconic HOPE poster.

UPDATE 02.08: Shepard Fairey was arrested Saturday in Boston on warrants accusing him of tagging property with graffiti.

RECAP: the Associated Press is claiming Shepard Fairey committed copyright infringement by not gaining permission to use their photo (right) to create his iconic illustration ‘HOPE’ of Barack Obama (far right).

This particular case is interesting from a personal perspective as well and not just because I am an illustrator and a photographer (among other arts). First, my father is a photographer. He’s been taking pictures his whole life and spent most of his career as a struggling self-employed, freelance photographer. Second, my grandmother is also an artist and her medium is textile. Using vintage kimono fabric from Japan, she creates these large and elaborate, beautiful scenes, based from a photograph, using tiny pieces of kimono (some pieces can use hundreds of kimono fabrics, each from a unique kimono). Like in the HOPE illustration, many of the scenes she’s created in her artwork (below, right) from have been scenes from my father’s photography (below, left).

So there are three generations of artists; the 1st generation creating artwork that is sometimes based from imagery created by the 2nd generation (the 3rd gen. blogging to you). Should my grandmother compensate my father for the images she’s used? I’m hoping they both weigh in here with their perspectives.

Now back to the AP, Shepard Fairey and HOPE.

The Associate Press issued a (appropriately titled) ‘press’ release on Wednesday, February 4th, that they have “determined that the photograph used in the poster is an AP photo and that its use required permission. AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

The Stanford Center for Internet and Society’s “Fair Use Project” (“the FUP”), which was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of “fair use” in order to enhance creative freedom, is representing Mr. Fairey in this matter.

Just a week earlier Reuters claimed that it was one of their pictures that was used as the basis for the illustration, a photograph taken by a different photographer, Jim Young.

Shepard Fairey has freely acknowledged that a photo by Mannie Garcia was the inspiration for his iconic ‘HOPE’ poster that has become ubiquitous and synonymous with the Obama phenomenon. In an interview with Terry Gross for WHYY’s Fresh Air, Shepard had this to say (before he knew that Mannie Garcia was the actual photographer):

“You know, I actually don’t know who the photographer is. It was an Associated Press photo that I got off of Google and, actually, still don’t know who took the photograph. …My illustration did stylize and idealize from the photo, and there were many other elements within the photo. And only one person in the entire time since I created the image a year ago has sent me the original and said, this is where you got that illustration, isn’t it? So, I’m glad, you know, one, that the photographer didn’t say, hey, I don’t like that you’re using this image.”

It should be noted here, that there appears some confusion in the community as to exactly how Shepard creates his art, with some thinking he traces it, while others thinking he simply applies photoshop filters to the image. In his own words, Shepard does “re-illustrate the photograph,” which is an important factor to consider. A solid entry on the matter is Tom Gralish’s blog, Scenes on the Road (based out of philly), which has some of the most extensive analysis of the images. It should also be noted that the original photograph has more than one subject; Shepard cropped a small section for his illustration. A few weeks back, The Washington Post had a breakdown of the poster, at one point using the description, “transformative.”

NPR also has multiple interviews with Shepard Fairey on the topic. Back in October, I found this question, posed by NPR’s Farai Chideya in her interview with Shepard (October 28th, 2008), of particular note:

“Do you ever feel that people have crossed a line with use of your image though, that the way in which people have decided to replicate it, or alter it, is something that you’ve got to put a stop to, and can you put a stop to it?”

It should be noted here that all proceeds from the sale of Shepard’s print were donated to the campaign. However, this didn’t stop others from bootlegging his creation, which, to put it simply, is just not cool. He issued a statement on this matter on his website back in February of 2008:

“Its extremely discouraging when we intentionally make Shep’s art obtainable and affordable for all and in turn are exploited and taken advantage of by GREEDY people. We put 100% of the poster proceeds back into the Obama campaign.”

In the cyberpress, PDN’s blog has a few entries on the subject, including an interview with Mannie Garcia, who said he doesn’t want to fight Fairey over the image. Chal Pivik’s post at LA metblogs also has a diverse section of comments, including some by photographer Glen E. Friedman, (via Sean Bonner), who had this to say:

“if Shepard did profit from the use, …i as the photographer would certainly be concerned, but when an image is used for charity or something other than straight merchandise that helps a “cause”…I’d be cool with that. But make merch of an already iconic image, and profit on it, or attach your brand to it? without release from the image maker or the subject? and indeed i will make sure you get dragged through hell if i can help it.”

For those who would like to read a fairly thorough and academic primer on fairey and his art should take a look at the article  “the medium is the message: shepard fairey and the art of appropriation,” by Super Touch.

So the question remains, what is fair use? Can you make an illustration based off a photograph, like Shepard (and Andy Warhol among other famous artists) has created without compensating the original photographer? Where do you stand? How has technology influenced how the creation of art has evolved? How do we now define what art is and how it is created?

The original poster was recently donated to the Smithsonian’s National Portrait Gallery, where it is hanging on display.

The Definition of Fair Use as stated by the us copyright office. Or, if you prefer, the Wikipedia version of Title 17 of the US Code.