Appropriations within Appropriations

August 26, 2010

New York Times reported this week that the Shepard Fairey case was set for a March Trial date. Docket number 1:09cv01123. (Hat Tip: Ben Sheffner)

For the uninitiated, the Associated Press (AP) countersued Shepard Fairey in 2009 for copyright infringement. See 2009 WL 648762. Fairey appropriated an AP image for his creation of the iconic Obama HOPE poster. For my part, this case is interesting not so much for its fair use analysis but for the fair use analysis within the context of “approrpriation art.” The Fair Use analysis is clear, at least according to William Patry:

Mr. Fairey’s use should be regarded as fair use despite his reliance on Mr. Garcia’s photo. As Judge Pierre Leval wrote in his Harvard Law Review article, endorsed by the Supreme Court in the 2 Live Crew case, “if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”… That Mr. Fairey’s poster enriches society has been undeniably proven by its widespread approval by the public, by President Obama, and by its becoming part of the permanent collection of the US National Portrait Gallery. PATRYFAIR § 3:91

Fairey’s work, as a whole, presents challenging questions regarding appropriation of another sort. ‘Found objects’ have been used by artists like DuChamp, Warhol, and Jeff Koons (See Wikipedia’s List of Artists using Appropritaion). This practice is typically permitted so long as it meets a fair use analysis. Try:

  • Database: Copyright Cases (FIPC-CS)
  • Query: ti(koons)

But, Fairey’s work has come under fire for its cultural appropriation. Fairey borrows heavily from images of political movements and, apparently without care for the source:

In 2006 Fairey printed a near exact copy of an already existing skull and crossbones artwork he found, altering the original design only by adding the words “OBEY: Defiant Since ’89″ along with a small star bearing the face of Andre the Giant…As luck would have it, Wal-Mart plagiarized the master plagiarist, copying and printing Fairey’s rip-off and adding it to the superstore’s own fashion line. A shopper at Wal-Mart recognized the skull motif’s origin and angrily protested – as it was an exact duplication of the infamous logo belonging to the Gestapo… …when confronted by the website, consumerist.com, Fairey offered the following excuse: “When I made that graphic I was referencing a biker logo and it was only brought up to me later that it was the SS skull.”

Many of the images Fairey appropriates come from the public domain. But, is the public domain merely fodder for this generation’s appropriation artists? Siva Vaidhyanathan’s article, Anarchist in the Coffeehouse suggests it shouldn’t be. But, is some sort of citation or enforcement required? Maybe, an alternative form of protection:

IN SEARCH OF ADEQUATE PROTECTION FOR CHOREOGRAPHIC WORKS: LEGISLATIVE AND JUDICIAL ALTERNATIVES v. THE CUSTOM OF THE DANCE COMMUNITY, 38 UMIALR 287

Or, is there still a role for the art critic?