I agree with you in part. Fairey is an extremely popular artist and I think whatever he works on will make the underlying work more valuable. The AP should be happy about this really, although I still think asking for permission in the first instance is the best way to go.

On your first point, if you are correct then Fairey would not even need to rely on fair use, so I doubt that is the case. If Fairey were there and were just painting what he saw at the same time then there would be no copying, and therefore no copyright infirngement. Remember, copyright infringement requires copying. Given that Fairey has never raised this defense, and I believe he even acknowledged copying the photo, this argument is not a legally winning argument in all likelihood. But you do pick upon on a very important issue with respect to copyright law. Independent creation is always a defense. I just don’t think the facts will support that here.

-Gene

You are 100% correct. This is something that I always advise. You are far better off having an agreement in place on the front end rather than a lawsuit on the back end. Regardless of right and wrong, parties are always more willing to enter into an agreement prior to money being involved then after money is involved. This is a truth across every area of law. The nice thing in the fair use context is that even if you think it is a fair use you should ask to get permission. If permission is denied or is to costly you can always rely on fair use anyway, so why not ask. There is no factor that would weigh against an artist who asks and then goes ahead if permission is denied.

-Gene

Like it or not, Fairey and Bansky are the biggest artists in the world right now, and no trivial legal issues or shutterbugs pointing and clicking and getting up in arms about their soulless photos being appropriated and chopped up and used as a frame will stop them, these artists have already already changed everything and influenced everyone. This issue will only be an ironic piece of performance art when it is all said and done. They are the next Warhols, Duchamps and Picassos, and their original work already is high in demand.

There is no secret that the AP has been trying to recast fair-use in the digital age. Many would argue that the Associated Press (AP) is trying to garner protections and rights that it is not entitled to or that they would allow themselves.

Just google “AP Fair Use” and see that comes up.

I hope that Stanford deal a decisive blow to the AP’s Monopoly.

Lithographs are original works of visual art that are “wholly executed by hand by the artist” and “exclude any mechanical and photomechanical process.” (U.S. Customs 2006)

Therefore, I read with great interest the above statement: “Additionally, all those who think that Mr. Fairey’s use is a fair use are simply ignoring the most similar line of cases, which deal with lithographs. Just like painters cannot take the works of photographers and reproduce them, the work of painters and artists cannot be taken and turned into mass produced posters and pictures.”

After careful reflection, I am sure you meant to write -reproductions-.

That aside, if the California artist Shepard Fairey is a painter and his paintings are being reproduced and sold for $100 or more in the State of California, is he disclosing them as -reproductions-? Under California Civil Code 1738 to 1745, if you sell a reproduction for $100 or more, you must disclose it as a reproduction. Failure to do so, included but not limited to: refund, interest, treble damage and $1,000 per occurrence.

Additionally, under U.S. Copyright Law 106a the Right of Attribution shall not apply to any reproduction. In other words, the printer of the reproductions own the rights to those derivatives he reproduced and would only be contractually obligated to give the artist what he contracted for. The artist paid for 1,000, he gets a 1,000. So, unless Shepard Fairey got the reproductions right reassigned back in writing from the printer, the printer could reproduced more without the knowledge or permission of the artist Shepard Fairey. There goes the so-called limited edition. That’s of course assuming you believe there is such a thing for reproductions because under U.S. Copyright Law 101 works of visual art are considered limited if signed and numbered by the author ie., artist but it does not say anything about reproductions.

Now of course Shepard Fairey might have realized these contentious issues upfront and got the reproductions rights reassigned from any printer first before agreeing to a deal. Of course that would be an admission that he knew they were reproductions from the very beginning. So, is he disclosing them as such?

So, whether photographer Mannie Garcia retained his copyright to his photograph or AP does, Shepard Fairey does not deny he plagiarized the image without proper attribution. Therefore, Shepard Fairey may be actually guilty of theft by deception and all the monetary damages that go with it.

In closing, on his website, Shepard Fairey writes: “I was broke throughout my twenties but I wanted to collect art, so I’m trying to provide that for people now.” In other words, Shepard Fairey may have been broke in his twenties but if he is selling non-disclosed reproductions of plagiarized work, is he ethically and legally bankrupt now?

Gary Arseneau
artist , creator of original lithographs & scholar
Fernandina Beach, Florida
garyarseneau.com
garyarseneau.blogspot.com

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