Empowerment through the arts
Shepard was artistic in the way he styled and stencilled Obama’s photograph in bold red, beige and blue colours. The portrait had words such as “Hope”, ‘Progress” and “Change” written at the bottom of the photograph. After Obama won the elections, the photograph was absorbed by the Smithsonian Institution in its National Portrait gallery. The stencilled photograph was a success with the Guardian reporting that it would be used in coffee mugs, T-shirts and bedroom walls of the youth in the years to come. In 2009, after the elections, the source of the photograph was revealed and it was known by the general public that it had come from the Associated Content Press’s AP, Mannie Garcia photographs. Associated Content pressed to be compensated however Shephard maintained that he had exercised his rights in the fair use of art.
The US law allows artists to use copyrighted materials for the purposes of news reporting, commentary, research, criticism and teaching purposes. The fair use of art law limits the exclusive rights of the owner of the copyright work. The law goes to protect the artists and allow them to enhance their creativity. Shepard Fairey’s use of the photograph taken by the Associated Content Press’s AP falls under the fair use of art category. It does not really matter which photo he used. Previously he had said that he had not used the AP’s photo but rather he had used another different one. He later came forward and admitted to being mistaken and lying to the Federal Judge about the reference photo(Jardin, 2009). He had actually used the AP’s photo. Shepard is therefore guilty of perjury and not infringement of copyright laws.
The fair use of art applies when several issues have been considered. The first issue is the nature of the copyright work; does it belong in the public domain? At a time when the elections and campaigns were taking place, the photographs of Obama and other candidates was not really private property since that material was important in the public domain. Secondly, use of the photograph does not in any way reduce the ability of the AP photographer to use the photograph and even make money in other markets. There was really no harm done in the AP’s market. Lastly, what was the purpose of the art? Was the art used for the enrichment or progress of the public or simply for financial reasons? In this case, the photograph became an instant success for the Obama campaign which was an important national event.
However, Shepard did not make any money through the photograph. 350 posters of the photograph were sold on the first day and it was widely used in the presidential campaign of 2008. The artist donated all the cash he received from the public to the campaign(Jardin, 2009).It has been argued that Shepard used a substantial amount of the AP photograph in his work of art, the stencil version of Obama’s photograph and as such should have obtained the permission from the AP photographer before using it in the campaign.A comparison of the stencilled version and the AP photograph shows the great resemblance between the two photographs. It should be noted however that his artistic abilities is what made the photo so special and such a hit in the media and social circles.
Jardin, X. (2009).Legal battle over Shepard Fairey Obama poster takes an unexpected turn.
Retrieved from: http://boingboing.net/2009/10/19/shepard-fairey-ap-ba.html
Jardin, X. (2009).AP tries to shake down Shepard Fairey over Obama poster he didn't profit
From (Updated).Retrieved from: http://www.boingboing.net/2009/02/04/ap-tries-to-shake-do.html