One evening in February 2009, the artist Shepard Fairey spoke at the New York Public Library. He was discussing his famous silkscreen poster Hope, which bore Barack Obama’s face, shadowed by swirling red and blue patterns. At the event, Fairey sat with legs akimbo, artfully slouched before the gilded, packed room, still retaining his old skate-punk persona. Speaking in a skater’s staccato pidgin, he said he was “stoked” about the poster and had “diligently perpetuated” the image on his own dime, putting it up on Facebook and MySpace and e-mailing it far and wide.
Fairey had been an haute graffiti artist for two decades. He borrowed from existing images in order to create silkscreens that mocked American corporate culture or extolled rock stars. He plastered these images across cities and towns, in what could be called anti-advertising advertising campaigns, testing the boundary between thievery and homage. All in all, he was pretty appealing, with his tufts of hair, drolly subversive demeanor, and images-must-be-free stance. I found myself nodding along as he spoke that night, in discussion with that chic legal scholar Lawrence Lessig, a founding father of “free culture.”
Free culture has a long history, but simply put, it’s an ideology that argues for finding a more balanced copyright law, one under which listeners and readers have as much legal protection as publishers and authors. It is based on an economy of giving: people freely distributing their work and allowing it to be augmented. In return, the givers get knowledge that their work is being creatively used and absorbed by many people. The most extreme entirely reject intellectual property, but most simply want copyright to be less restrictive. As Jay Rosen, an associate professor at New York University’s journalism department, put it, by sharing one’s work, “you gain not lose. That’s what Wikipedia is based on. This philosophy starts in the same place that journalism starts.”
Fairey wasn’t onstage just because he was cool: he was a literal poster child for appropriation. A month or so before the event, The Associated Press had accused him publicly of copying one of its photographs, without payment or permission. In response, Fairey sued the AP. He argued that he had used freelancer Mannie Garcia’s photograph, which Garcia sold to the AP, “as a visual reference for a highly transformative purpose.” He sought a court order that would say his Obama image didn’t violate AP’s copyright. Fairey claimed his work was covered under the fair use exception to the copyright statute. Among other things, fair use allows for the use of preexisting content and images, as long as the new work is a true alteration of the original.
At the library that evening in February, Fairey presented himself as the innocent provocateur—that familiar art-world paradox that is somewhere south of the wise fool—who had been unfairly attacked by a media titan. In Fairey’s drama, the AP was the heavy and he the defiant “little guy.” As Fairey spoke that night, though, reality began to set in. He had appropriated the image of an even littler guy, a freelance photographer, without even finding out who he was, let alone acknowledging his work. And the AP was striking back not because it was simply censorious, but because it had watched, hapless, like so many financially stressed news entities, as its content was siphoned off on the Web. And although Fairey cited fair use, the line between fair use and infringement can be foggy. Under fair use, one person’s work can be used by another person or organization, but only in certain contexts—in criticism, for example, when a reviewer quotes from a book or uses an image to illustrate a point. But it’s not clearly quantified: How many lines of text? Unknown. How much of a photo can be reused? Not sure.
Because the world is changing, and the world of journalism in particular is transforming, Fairey automatically became part of another story, one provocation among many copyright issues that are bedeviling journalism. Fairey’s case also showed me most clearly that “payment” for the use of journalistic or creative works is not just about the money anymore, at least for independent writers and artists.
It’s about money and a parallel currency that may be as valuable to some as money: attribution by name, or even collaborative attribution. These should be the new rules for photojournalism and journalism per se in the age of appropriation. In the new world of “ethical” use, couldn’t Shepard Fairey’s Obama image have had the credit “Photo illustration by Mannie Garcia and Shepard Fairey” from the beginning?