Yes, I agree with you but would go one step further. He should have asked permission from you to use that photo in his artwork. He broke the copyright law when he did this and also when he used the Obama photo without asking for permission.

There's a reason why Fairey used your photo. It conveys the essence of the moment. That's creative work that is protected by law.

I heard Fairey speak on NPR and read his post on Huffington about justification about using photos without permission. His reasons do not hold muster. He doesn't consider photography original artwork, simply a documentation of people and events. That's an insult to talented photographers like you.

Wow, he really said that he doesn't consider photography original artwork? That's ludicrous.

OK--I am not sure he actually used the words "original artwork" but I clearly got that impression from the interview on NPR. I do remember him saying that news photography was "documentation" suggesting that it was not in the same vein as his artwork. I don't have the transcript of the NPR nor have the Huffington Post here but am writing from what I remember.

Fairey is a talented artist who doesn't need to use photos without permission. He needs to go back and make restitution for past mistakes.

Wow. I will post this on Facebook...but can't guaranteed I'll give you credit.

Thanks for clarifying, Joan K.

Ed, if Fairey had asked for your permission to use the photo, how would you have responded?

The argument is that Fairey's use of copyrighted photographs falls under the fair use doctrine. I don't believe he has broken copyright law by using the image without permisson.

http://www.copyright.gov/fls/fl102.html

I also heard that NPR interview, and I came away with a different interpretation. He was also speaking specifically about that Obama photograph, not all photojournalism is general.

Copyright and restitution issues aside, I am most bothered by his misrepresenting where he gets his images by failing to give credit or detailing their source. Even writer''s have footnotes! I'm flattered that he's used the image and I like what's he done with it. I don't like reading that he used "Chinese propaganda images" to make it. It was more likely from a clipping in the New York Times or a magazine.

I heard the NPR show as well and the laws were clearly explained and I could see how Fairey was justifying his actions by law, but I still think he should have credited the photo. The laws are such that if you change a piece of work something like 20% it is no longer original. That works ok when you are doing a parody, or something derivative, where the original work is well known, often a "classic", and doesn't need to be referenced. In the case of photo journalism, that isn't the case. He also cited that he was taking the photo out of it's original context and changing the meaning of the photo, which I'm not sure I believe. Finally, his lawyer argues that it was non-profit and exempt because he had no personal gain. It's that last bit I find disingenuous - Fairey gained quite a bit.

Photographers do as much as possible to get the information about the picture, who they are photographing, where, what the context is, etc. Artists should do the same.

On a personal level, I was quite shocked to find out that he used that photo without crediting it. As an art student, I have always been told to use only those images I took, paid for or have acquired the rights to, otherwise, don't bother.

The idea that you can change something 20% and thus make it your own is ridiculous.

I have taught creative writing and composition classes for 35 years, and I frequently run into students who claim that if they change 30% or 40% of the words in a sentence they make the writing their own and they therefore don't need to cite sources.

I fail these students.

Plagiarism is definable and Fairey is a plagiarist.

Let's give this man an F.

"Photography was "documentation" suggesting that it was not in the same vein as his artwork."

So does that mean if I take a journalists written words and use them to write, say a film script, that I haven't violated copyright laws? (After all, journalism is just documenting.)

As an artist, I am very sensitive to your concerns. Obviously, Shepard was less so. Perhaps the way to exact sweet revenge is to contact some heavy weight galleries to curate a show and print up poster size images (in various exposure) of the original photo and in graffiti font, plaster the word "Original" across it and sell them in signed, numbered, limited editions. I think you would have a sell out show. I'm sorry for the theft of your work. Friended.

What Cartouche said. She's the smartest person in the room. :-)

You say: I think a lack of accurate context for the image drains it of meaning. It's also dishonest. I totally agree. That is the crux of the issue.

Plug in some other image based on some other photo of soldiers and you're good to go. He didn't use your photo. You didn't create the artwork, he did.

Every artist/illustrator has a morgue or similar source of images, these days it's google.com's image search. Your work got quoted. What of it?

Whether or not the photo is protected under copyright laws can be argued equally well on both sides of the issue. The use of the image, and the artist's attitude towards it as being of a lower order, i.e. documentary photography, is simply rude.

As Cartouche said in an earlier comment, you are entitled to counter w your own tactics.......perhaps an exhibition that addresses this issue, including other photographers who's work has been unfairly appropriated for financial gain.

Please see the Rogers vs. Koons case: http://en.wikipedia.org/wiki/Rogers_v._Koons

"Bad artists copy good artist steal" Picasso

I really like Cartouche's "original" idea!

Gordon's view seems to be that images exist independently of their context and have no value except when altered by an interpretive genius. If my work were quoted that would be fine ("quoted" implies attribution). In this case it was misrepresented.

It is frightening to me that we have very little sense of history or context in general these days. I agree with you. I also think it's just good karma to give credit-whether you "have to" or not- I always try to do that in my own writing.

As a musical composer I get both sides - we all write on the backs of giants and if copyright law was what it is in Bach's time we wouldn't have the western musical canon that we have today.

I'm flattered if people use my work. If they make money off it, I want to be paid some of that, cause I did the work that started it and I'm starving. And there is a difference to me if it's some other artist struggling like me or if it's Sony Music doing the promotion.

The new art of mash-ups complicates this, and Fairey's interpretation is a visual mash-up. I entirely agree with you - credit where credit is due. And ok, flowers in guns - shouldn't there be just ONE original idea in the interpretation? There's nothing new under the sun but I'd hope we could see an attempt. Maybe flowers in guns are the equivalent of "madonna and child" but, well there it is.

Arts issues aside, it seems fair that get a piece of the money being made with the image.

The context of the original photograph has been misused and distorted. It is propaganda to turn an image of pending violence into one of peace. It is worse than a copyright violation. Thank you Ed Nachtrieb for your great photograph and for this post. I would certainly not support Shepard Fairy after this. His technique is more like a rip off of Andy Warhol than original work so he is a copy-cat in more ways than one.

so an artist takes a picture that no one really paid attention to, turned it into something that people actually want to see, and somehow that's plagiarism. His art is commentary on news - I could use those same pictures in a news story on TV and no one would be allowed to complain, but because his commentary isn't a traditional media outlet he's crucified for it. These photogs should thank their luck stars for SF. I mean really, where the hell on a work of art is someone supposed to palce a footnote or reference. The original pictures, while very fine photo's, don't make the emotional connection that the artwork does, and so they don't get the same recognition. If this photographer happened to walk by an outdoor movie set and took a stunning photo of an actor in action, would the director or set designer have a claim of copyright infringement. They might try, but they wouldn't win.

If Fairey was the artist he claims to be, he would take his own photographs. Barring that, he could purchase the rights to use the image. If he's too cheap to do that, he could work from royalty free images from company's like istockphoto.

I'm a starving artist with very limited means, but if I use an image, even one that I heavily manipulate, I credit the source, I purchase the rights to it, or I generate the original myself.

Fairey is talented, but lazy.

P.S. And, though it may be hard to believe, you do too have room on a poster to credit sources.

You're in good company.

http://www.art-for-a-change.com/Obey/index.htm

I believe - & I say this with all due respect to your wonderful photograph - that you should sue Mr. Fairey. But I say that because I actually disagree with you, & only so that the courts might finally put to rest an issue I feel the art community intellectually resolved decades ago.

I understand your personal connection to this subject. But I don't understand how an artist working today could not differentiate between these two images, and not appreciate that that which makes them different makes them different wholly, fundamentally & entirely. We may as well be arguing the difference between an apple & a painting of an orange.

I've read through the comments and there are good points made. I‘m a working gallery or “fine” artist now, but started out as a commercial artist doing editorial illustrations. (mostly). On the one hand, Fairey covered his butt legally by changing at least two obvious elements form the original. Legally, it's an "interpretation" of the original. If this was an illustration for a magazine or something, you might or might not have been paid a royalty/given credit. Sucks, but tis true. It is VERY close to the original so, in this scenario, you'd have grounds to get the image pulled, though it'd take lots of phone calls.

Fairey blurs a line between commercial and fine art in which -- thanks a great deal to Warhol and Rauschenberg who often re-propriated "found" images as a sort of social commentary or used in the name of Irony, it's become a very grey area... one that has to be dealt with on a case by case basis. A good example of this is an artist that used the Louie Vitton Logo as a patterned Background in a hotel room (the hotel des arts in SF). LV's company found out and ordered a cease and desist, which of course heightened the artists fame… but that’s a different topic.

Really, the only time there is legal issue, is if the artist uses whatever image in a commercial setting -- whereby he/she makes profit. In the fine art realm, it's considered a private one time sale and an expression of said artist so -- in the clear.

If you start seeing this on tee shirts however -- call him out. I would.

@ Brinna Nanda

"If Fairey was the artist he claims to be, he would take his own photographs. "

This comment is ridiculous. I suppose Monet should have built the cathedral in Rouen before he painted it...

I'm "writing" a book that consists entirely of photographs of Fairey's "work".

I will change his "work" a lot more than 20% ... I'll convert it to an entirely different medium! I'll even cobble it together into a collection of my own design and further remove it from its source by putting everything into the print book format!

If I don't think I have changed any particular piece enough, I will process everything through a few Photoshop filters to flesh out my genius. If that's not enough, then I'll run an outline filter on the filters so that my insight may be further recognized. And if that's STILL too similar to the original (actually ... that describes Fairey's work pretty well ...) then I'll colorize the "work" to truly define it as my own "creation", ripped still-beating from my massively-creative chest.

My book will be titled, "Call My Publicist ... I'm An Artist!"

Subtitled: "What, Me Original?"

I will make no money from this important piece, rather, I will hope to profit in some small way from my generous bequeathing of the "work" to the public ... perhaps by being proclaimed a "Great Artist With Vision" and being propelled to the top of the morning news show circuit to discuss how selfless and talented I am, and to explain to the world how I did not "infringe" anyone's "rights" ... I just used some stuff I found lying around the Internet as "inspiration".

Now where is that Mozart concerto I am "composing" ... uh ... "being inspired by" as I compose my own original "work"?

What he did may not be illegal, but it's certainly unethical and unfriendly.

I agree with you Ed 1,000 percent. I find Shepard Fairey's continued use of other people's photos without their knowledge a disturbing precedent. I just believe there are better ways for him to go about creating his artwork without misrepresenting himself.
Rated.

His picture is very different from the photo. - he uses color, adds, patterns ansd symbols and far from draining it of meaning he changes whatever meaning it had by placing it in a different context.
I have to laugh at photographers who become incensed at people who use their work - I mean please give us the name of this soldier AND his mother and father so we can give credit where credit is due!

How hard would it have been for him to create his own image of the soldier in question, or even Obama, for chrissake? I mean, LOOK at it!

I don't think what he did was illegal and I don't believe it even to be that unethical (the actual work). It is a dick move and gets into some sticky ground that's not really easily resolvable. Should he have credited you for the inspiration? Absolutely. Should he have asked you? Maybe. Is it not "art" because it's reappropriated? It still is art.

I think Red Star has a good point - if you start seeing this on t-shirts, it becomes a different story. For now, I agree that Cartouche's idea makes the most sense.

Fair use only extends to arbitration. It's a circumstance that only is defined within the context of a settled agreement. It can be broached through prior instance, but these are arguments that are addressed (most often) in the context of a courtroom.

Saying "fair use" doesn't actually protect you from anything. It's just an option when you seek arbitration or in litigation. That's why Mr. Fairey initiated a lawsuit against the owners of the Obama photograph. The settlement stalled (in his view) and he decided to litigate to determine if he was protected by fair use as it would be determined in his case.

Here's an argument though, I think context is as important as source. I'm a fan of Andy Warhol's "disaster" series which was basically silkscreened enlargements of newspaper covers. The photos of course were being repurposed in this situation. But unlike Fairey, Warhol didn't hide the source of those photos. They were included with the day's headline, the byline and the date of the source. The method of re-contextualizing the content, was the point of the exercise - but you couldn't argue that he "stole" the material - because he plainly showcased it's source and original authorship.

Now - when he lifted some flowers from a photography magazine that belonged to Patricia Caulfield he ended up having to settle out of court for royalties on future use.

On the other hand - appropriating trademarks in of themselves - like a soup can - falls into editorial and is usually provided more protection as long as it's not a wholly commercial setting.

IE: I can make a comic or painting that includes the CBS logo as commentary, but if I were to mass produce cards and posters for wide sale I'd be on the hook for dilution.

The bottom line, is the line for protection and use is always moving, and as more court cases occur - it will continue to. I support appropriation - but I'm also a big fan of good-faith. Meaning I might make a painting about a trademark, but I'll seek permission and draft a royalty agreement before I sell a t-shirt based on that painting. That's not only being polite - but it paves the way for future works without a lot of tedious litigation.

http://en.wikipedia.org/wiki/Appropriation_(art)

BTW: I'm not an IP lawyer - I just have spent the better part of 20 years working along side them in various content industries.

For those musing about a gallery show of SF one-offs or a book of his work mechanically filtered, I say GO FOR IT. See what happens, which will probably be no one cares or notices because it's not art inspired by his work or otherwise. We don't need a world where artists have to footnote their inspirations and reference materials. I think we all get our culture is built on all that came before.

you've articulated this very well. i absolutely feel that copyright law is stifling and should be changed substantially. but i don't endorse this kind of outright theft either, not because of compensation concerns, but because it makes it so much harder to contextualize these pieces. i had no idea what a thief fairey was until i read this article:
http://www.art-for-a-change.com/Obey/index.htm

to me, it seems very significant that they're mostly pieces i wouldn't recognize. i find taking the obama picture to be more forgivable because i don't think it's particularly easy for artists to manufacture their own pictures of celebrities. i would have had to cough up 2k to see sarah palin when she came to california. you can't exactly schedule these people for sittings to take portraits, and i think expecting artists to make those unique images would stifle a lot of creative efforts that are totally legitimate.

what do you think of this? i made it for fun, for designforobama, which was hosting free posters for people to download and print for election events. now it's being published in a commemorative book. do you think warhol would be mad?
http://www.flickr.com/photos/43103096@N00/3003609570/

i can honestly say i didn't intend for that to happen. but i'm curious to see if anyone will complain or try to sue me.

Another unrelated story on Shepard Fairey here: http://www.open.salon.com/blog/kressskin/2009/05/20/barack_obama_has_a_poster

Photography is an art form, for those who think the people in the photo should be credited (well, I get it's a joke but you know, LAME). But really, as photography is an art form, and that is your art, he should have done the right thing by it and credited you and paid you, etc.

20% is not much. But I'll bet you a million dollars that, if this was a Disney image, we'd have a whole new set of laws by the end of next week.

All artwork is derivative. And niggling intellectual property enforcements for images were only brought to a head in the first place by mid-twentieth century media technologies.

However, what the last century giveth, the next century taketh away.

Frankly, though, most of history is on Fairey's side here.

http://images.google.com/images?hl=en&rlz=1T4GPEA_enHU300HU300&q=madonna+and+child+raphael&um=1&ie=UTF-8&ei=PPEUSp35M8KvsAbhsqihCg&sa=X&oi=image_result_group&resnum=1&ct=title

Good for you for staking your claim, since the "artist" wasn't courteous enough to to begin with.

He straight ripped off the rose in the gun from a photo of a San Francisco Cockette dancer at a Vietnam war protest from way back.

Sadly, the perspective of meaningless (or non-contextual) imagery is something I see more and more of in the current era of art. Makes me so angry!

It is one thing to take your own photo and manipulate it, or purchase a stock photo for use in a larger work, but just to out and out use your photo without permission is wrong.

Frankly with the low cost of stock photography now days Shepard Fairey could have spent a few bucks for images he needed for his work without stealing yours.

Shepard Fairey is a fraud, always has been, always will be. His work is interesting only as advertising, and usually all it advertises is himself.

Aside from the issue of stripping the image of all context--no shock there--the real issue to me is that he didn't steal a photograph and alter it. He stole an ARTWORK. I might feel differently had he used the original photo and interpreted it his own way. Rather, he stole YOUR interpretation of YOUR OWN photo. Sorry, Shepard, but that stinks like the piece of shit you are.

Appropriating known works by known artists--for example, using Warhol's soup cans in a painting--is fine, because everyone is familiar with the work and it is an act of recontextualizing.

To take an image that is not commonly known and rip it off completely is called stealing. It sure sounds illegal and it is certainly unethical. Why bother making your own work when you can steal wholesale from lesser known artists?

Did I mention that I think Shepard Fairey's work is empty and worthless?

Rated and facebooked.

Wait, I misunderstood. I thought the first painting was by you. If he ripped off the photo, it's still kinda messed up, but not nearly as bad.

But I still can't stand his work.

I'll add some support. Nothing is more reprehensible than to steal an artist's work and then to arrogantly blather on about how it's no big deal.

At any rate, he's exposed for a plagiarist, which should bring him some grief, even though you may never recover credit for your work.

Peter Nachtrieb at 10:45am May 23
Hey Ed, here's an interesting article to contribute to the conversation. great series, of essays!.

http://www.gladwell.com/2004/2004_11_25_a_borrowed.html

. . . and the irony is that he sues people who try to copy his stuff, much of which contains other people's images.

Obama has come to the forefront of our time by promising to bring change to our political landscape when in actuality he has brought only a change of introducing a cultural thief to our attention. The Cultural Thiefs name is Shephard Fairey. Anthony Falzone who legally represents Shepard Fairey in a legal lawsuit with the Associated Press feels that, "The point of copyright is not to reward creators; the point is to encourage creativity and new expression. He adds Fair Use is NOT limited to just parody/satire as you can borrow copyrighted works to tell a larger story.

My absurd response to Falzone’s belief system is that I would love that he argues my criminal actions as a legal representative if I subjectively cite Fair Use by fictitiously robbing Anthony Falzone of his home and property.

My argument would be my right to expression as I was only in need of Falzone’s precious token objects only to encourage my creativity and its new expression. My value in being a cultural thief mirrors Falzone’s client Shepard Fairey whose so called logic is not invested in the economics of its possessions but only to author and steal these objects as semiotics of expression...

If you believe this line of reason then any convicted felon as a criminal should adopt this critical logic as its defense. I say open the prisons and allow Criminals to ROB Banks where they can cite freedom of Expression!!

The real truth is that I encourage you to move forward in filing a lawsuit seeking liability against Shepard Fairey and his corporation; Millions stands behind you in identifying with the sole ownership of your work which comes from the value of the hard work ethic of common men. Fairey who from this point on will be known as the Rosie Perez of the Artworld will settle with you immediately as he does not want your case to be revealed in the public eye. Your case needs to be in the Media as an example of Fairey’s contradiction and poor choices along with his disheveled public relation policy.

With respect to the valued shareware movement which encourages and enables free expression and broader cultural engagement.
The Free Share Information is a movement to promote free expression and innovation in online sectors. Shepard Fairey is mistakenly not a part of this creative commons movement as he is obviously bought his way into the middle of its movement by retaining Falzone in subverting his interest only to protect his personal profits and assets as liability.
In clarity, Fairey appropriates other people’s works to advance only his economic interest he hides behind a legitimate movement when he does not even work in the online medium as a movement but in static prints and paintings as a manipulative propaganda rhetorical stance. He has NEVER cited Fair Use until only recently when he was represented and affiliated with Anthony Falzone and the creative commons movement.
Yours in Fairey’s so called criminal indulgency and gratuitous relativity,

The Phantom Street Artist