Shepard Fairey vs. the AP: Did Hope Win?

This post was originally published on the blog of the National Alliance for Media Art + Culture.

After its iconic role in President Obama’s 2008 campaign, could Shepard Fairey’s Obama “HOPE” Portrait now become a poster for the debates over intellectual property and copyright? It’s been nearly two years since the Associated Press claimed that Fairey owed the organization credit for using a picture taken by one of their photographers as the basis for his portrait of then-Senator Obama. In the complications that ensued, Fairey brought a lawsuit against the AP seeking a declaration that he had not violated copyright, and the AP countersued in turn by alleging he had, by not crediting or compensating them for use of the picture.

The two parties finally reached a settlement on January 12. In the end, neither side had to admit they were wrong. Instead, Fairey agreed not to use any other AP photos without license to do so, and he and the AP will share profits derived from the sale of posters and other articles based on the image. Further, Fairey and the AP have plans to collaborate on several other derivative works using the news organization’s collection of photographs.

In suing the AP, Fairey grounded his argument in a broader art historical context, pointing out that many artists over the years have engaged in the same kind of fair use of other works as he claimed he did. Take Antonio Canova’s Perseus, for example, a sculpture based closely on the classical Apollo Belvedere, or Marcel Duchamp’s cheeky reproduction of the Mona Lisa, titled L.H.O.O.Q. Of course, neither the sculptor of the Apollo Belvedere nor Leonardo da Vinci was alive to contest these later derivations, and their work was, for all intents and purposes, in the public domain. But when graphic designer Milton Glaser based a Bob Dylan poster on one of Duchamp’s works, when both were still working artists, he credited the source of his inspiration. Citing this example from his own career, Glaser responded to the Fairey-AP lawsuit by arguing that if he were Fairey, he would have handled the situation differently. Clearly, the issue is a nuanced one not only in the realm of policy and the law, but also within the art world itself.

It’s easy for the broader implications of the Fairey-AP case to get lost in light of other controversies in which the artist has found himself embroiled. After all, he was arrested  by the Boston Police Department on graffiti charges (for allegedly posting images on property owned by the Massachusetts Turnpike Authority) while in a cab heading to the opening of his first retrospective exhibition, at Boston’s Institute of Contemporary Art. (However, The Boston Phoenix suggested at the time that the arrest was really retaliation by the BPD over matters of local politics, unrelated to art.) The arrest, which occurred on February 6, 2009, came just three days before Fairey filed suit against the AP, thus framing the issue in a stark contrast between the art world (ready to bestow a significant honor through the wildly popular ICA exhibition) and the law.

After the media firestorm surrounding these events, what does it mean, now, for the rebellious street artist figure to collaborate with the mainstream media? Where one stands on that question will likely vary from one cohort to the next, but perhaps teaming street artists with the media could prove fruitful for the future of both media and the arts. Therefore, it is at this intersection that media and arts policy has a role to play in clearing the path forward for future artists (especially those who don’t benefit from Fairey’s level of celebrity) by clarifying both what fair use means in a digital age and how it can protect and inspire artists working in all media.

Even more ironic than Fairey’s upcoming collaborations with the AP is the fact that a copy of his Obama “HOPE” Portrait presently hangs in the National Portrait Gallery in Washington, D.C. – in a building that was formerly the Old Patent Office. In the 19th century the surrounding blocks in downtown Washington were filled with lawyers who addressed questions of intellectual property, and it’s worth considering the present context that has evolved from their early work. Historically, as Lewis Hyde notes in his book Common As Air: Revolution, Art, and Ownership, the U.S. Supreme Court has rationalized that the role of copyright is “to promote the Progress of Science and the useful Arts,” not to reward individual creators. Today, with the proliferation of media platforms that have low barriers to entry and the distribution of huge quantities of artistic work over the Internet, it becomes increasingly complicated to interpret the actions of both individuals and organizations in their relationship to “the useful Arts” as a whole. As one of my colleagues at the New America Foundation pointed out last summer, cultural policy in the U.S. today would benefit from coordination across existing departments to make sure that these intersecting media and arts spaces have similar expectations of how fair use, creativity, and innovation should coincide.

Shepard Fairey gained exposure to his Obama “HOPE” Portrait first through its great popularity in the then-senator’s campaign, and subsequently over the course of his brushes with the law. But for the sake of those artists who do not attain such heightened levels of publicity, lawmakers have a role to play in clarifying exactly how cultural policy can ensure that artistic development in the U.S. progresses freely and openly, while striking a balance between copyright and creative freedom.