You’d literally have to be living under a rock lately to have not heard the news that Supertouch‘s SHEPARD FAIREY is currently being sued by the ASSOCIATED PRESS for his use of an image the agency is now claiming dominion over after the artist used it to create the most iconic piece of American political art of all time. Today, the esteemed HUFFINGTON POST is pulling the AP’s card with Jonathan Melber holding the pen:
THE AP HAS NO CASE AGAINST SHEPARD FAIREY
By Jonathan Melber
(Co-author of “ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career”)
Huffington Post, February 8, 2009
A few days ago, the Associated Press announced that Obama’s famous HOPE poster amounts to copyright infringement. The artist behind the poster, Shepard Fairey, has never hidden the fact that he based his iconic creation on a photograph he found through Google. The AP thinks it owns the copyright to that photograph, since Mannie Garcia was freelancing for the AP when he shot it. With posters sold out, a special edition in the National Portrait Gallery, and major exhibitions in New York and Boston, the AP wants in on the windfall.
But the AP would very likely lose this case if it ever ended up in court. That’s because, under copyright law, Fairey’s work almost certainly qualifies as “fair use” of Garcia’s photograph.
The term “fair use” gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person’s original creative work. That means you’re typically not allowed to create work using someone else’s original unless you pay that person. “Fair use” is an exception to this rule: it says that sometimes you don’t have to pay someone to use his or her original work. Whether you do–that is, whether your new work qualifies as “fair use”–depends on what, exactly, the original work is, how much of it you’re using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is “fair.”)
By far the most important factor is how you transform the original work–but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one.
Take, for example, an influential 2006 decision vindicating Jeff Koons. A fashion photographer named Andrea Blanch sued Koons for using a picture of hers in one of his paintings without paying her. Koons had scanned her photograph, which she had taken for a Gucci ad, and cut and pasted it into a digital composition he then painted. The federal appeals court said that Koons didn’t need to pay Blanch to do what he did, because of how thoroughly Koons had transformed the photograph. Click HERE to continue reading…
Given our increasingly frequent discussions of the concept of “FAIR USE” in the art world, we at Supertouch thought now was a good time to reprint (using the article’s creative commons license) “Fair Use it or Lose it…” one of our favorite pieces of writing on the subject. Written by MARJORIE HEINS and published on the website of nonprofit action agency FAIR (Fairness & Accuracy In Reporting), the piece is an erudite discussion of the copyright and trademark issues crucial to the increasingly central “remix” culture that is a driving force in modern art and creative endeavors. HAVE A READ:
FAIR USE IT OR LOSE IT
Copyright owners’ threats erode free expression
By Marjorie Heins, Extra! May/June 2006
Tom Forsythe is an artist with a mission. In 1997, he created “Food Chain Barbie,” photographs depicting the iconic doll interacting with various kitchen appliances. The results—“Malted Barbie” and “Barbie Enchiladas,” among others—were intended, Forsythe said, “to critique the objectification of women associated with Barbie.”
Barbie’s manufacturer, Mattel, sued Forsythe for copyright and trademark infringement. Eventually, a federal court ruled for the artist, finding that “Food Chain Barbie” was protected as a “fair use” under both copyright and trademark law. The court explained that there are great public benefits to allowing critique of cultural icons. Letting Forsythe use Barbie’s image encourages “the very creativity” that is at the heart of copyright law.
This was a success story for free expression, but it cost four years of bruising litigation. Most people threatened with suit cannot afford the risk, the cost and the stress. (Forsythe was helped by pro bono counsel recruited by the ACLU.) Often, they cave in to “cease-and-desist” letters or legal threats, even though they might have a legitimate fair use defense.
Fair use is an essential part of intellectual property (IP) law, which includes the law of copyright and trademark. It allows anyone to copy part—sometimes all—of a work without permission, for purposes such as commentary, criticism, news reporting and education. The copyright law lists four factors to be considered in evaluating a fair use claim: the purpose and character of the use; the nature of the copyrighted work; the amount and importance of what was copied; and the effect on the market for the copyrighted work. There are also fair use and First Amendment defenses in trademark law. Read More
Otaku MARK RYDEN fans clamoring for a close-up look at their messiah will have to head out to Tokyo next month to witness the opening of “The Snow Yak Show” in person on February 7 at TOMIYO KOYAMA GALLERY. The show features eight new paintings including “Sophia’s Bubbles,” a large-scale, 7 1/2 foot-wide piece that made its auspicious debut with Tomiyo Koyama at Art Basel Miami in late 2008, along with an array of smaller drawings and paintings studies. Most notable about these new pieces is Ryden’s abrupt stylistic departure from the baroque detail of his previous works in favor of a more austere and minimal approach characterized by an icy cool color palette and nearly barren backgrounds. What’s not captured in these accompanying photos, of course, is the incredibly delicate array of nuanced colors Ryden has layered in these deceptively simple portraits as well as a variety of distinct new textural surface treatments unseen in his previous work. It is (unfortunately for cash-strapped fans) a show that truly must be seen in person to be fully appreciated. Expect full coverage of the event here on Supertouch as well as an interview with the elusive artist following the show’s debut. For fans that simply can’t wait for the show to open, a limited-edition print of his new “Fur Girl” painting is available NOW through PORTERHOUSE FINE ART. Meanwhile, HAVE A LOOK: Read More
French photographer JEAN-YVES LEMOIGNE‘s snaps of pixelated girls of leisure for the current issue of premium French gamer & toy collector magazine AMUSEMENT are truly a thing of beauty in their Lego-esque cubism. HAVE A LOOK: Read More
Making the rounds in old Hong Kong this week was Supertouch‘s own RON ENGLISH who hit up the island for the official debut of two of his new toy projects: his ABRAHAM OBAMA bust and SMILE figure. First up was his “Smile” reception at GARAGEWORKS GALLERY, where faithful HK hipsters turned up in droves to get a close-up glimpse at the New Jersey bad boy’s brand-new vinyl reworking of old Charlie Brown’s familiar grille. Moving along, it was off to the MINDSTYLE TOYS world HQ for the debut of Ronnie’s timely Abraham Obama bust, a figure that must surely have HK residents scratching their heads in bewilderment. Dropping worldwide just in time for inauguration day, American fans can get ahold of the very elusive silver colorway exclusively at LA’s hipster hotspot BARRACUDA, while supplies last. HAVE A LOOK: Read More
Simultaneously paying homage to the unforgettable “Black Bart” bootleg tees of the early ’90s and the historical moment of President-Elect BARACK OBAMA‘s impending inauguration, NYC streetwear label MISHKA has produced this must-have celebratory T-shirt in time for proud display on January 20th. Finish it off with a pair of Cross Color overalls (only one strap fastened, of course) a Kanai jean jacket, and a Gumby fade, and you’re a made man…
With a tolerance for cold exceeded only by his outright fetish for high heels, the London-based street art phantom known as INSA spent the past three weeks in -35 degree temperatures carving out his own visionary art suite at Sweden’s legendary ICE HOTEL in the Arctic Circle. A boarding phenomenon unto itself, the hotel is an annual construction that allows guests to eat, sleep, and whatever else might happen on a Reindeer skin in between eating and sleeping, in the cold comfort of a hotel and bed constructed entirely of native ice & snow. A sculptural palace akin to the fortress of solitude in its crystalline grandeur, the hotel is a marvel of chainsaw-carved architecture beneath the haunting lights of the aurora borealis. Insa’s room, is of course, dominated by a pair of 6-foot-tall legs in high heels straddling a bed whose headboard bears the artist’s trademark interlocking swirly heels graphic, transforming the space into a sacrilegious space of worship for the truly devoted. If your fat layers are properly developed and you fancy a stay, unleash your reservation by clicking HERE. Meanwhile, HAVE A LOOK: Read More
It seems KAWS has finally hit the big time with his artwork for the special edition packaging of KANYE WEST‘s new “808s & Heartbreak” album hitting Times Square this week. Based on a painting featured in KAWS’ recent NY show at GERING & LOPEZ GALLERY, the cover is available for a limited time on physical copies of the CD at select retailers.
Much has been said here at Supertouch about Japanese Pop master TAKASHI MURAKAMI‘s traveling art circus otherwise known as his “© Murakami” show and its previous stops in LA & Brooklyn, so now that it’s touched down in Frankfurt Germany at the MUSEUM FÜR MODERNE KUNST, we’ll be happy to make do with a quick peek at the new installation and some of its recently-added pieces before it wraps up on January 4th. HAVE A LOOK: Read More
…Aired in Japan, only, of course. That kind of stuff doesn’t happen here.