Douglass v. Fairey - Fair use and credit
March 7, 2012 9:33 PM   Subscribe

An interesting tale of fair use and Shepard Fairey. Not the one about the AP Image, this one has to do with a fellow artist. [NSFW: nudity]
posted by JoeGoblin (48 comments total) 11 users marked this as a favorite
 
It sometimes seems that, no matter the medium, getting to be "known" requires being a totally self-centred asshole.
posted by thecjm at 9:53 PM on March 7, 2012 [12 favorites]


thecjm beat me too it.

The more I read about Shepard Fairey the more I think, there's what you get when you marry talent with a total disregard of other people's talent. The total lack of empathy is almost an art form.
posted by cjorgensen at 9:55 PM on March 7, 2012 [8 favorites]


That's the thing -- the original photographer didn't even ask for MUCH. (not to mention that, IMHO, his piece took the entire punch/point/etc. out of the original.) I like Fairey's art, and think he's a great designer -- but he seems to be a douche.
posted by Rev. Syung Myung Me at 9:58 PM on March 7, 2012 [8 favorites]


Good Lord. Why doesn't he just go buy himself a camera? They're not expensive.
posted by sexyrobot at 10:04 PM on March 7, 2012 [6 favorites]


He's an artist! His use of a camera would be an endorsement. He needs paid for that.
posted by cjorgensen at 10:06 PM on March 7, 2012


Unfortunately, the interesting details have been omitted:
I called renowned copyright attorney Carolyn E. Wright for advice (www.photoattorney.com), and she took my case. While I could share some very interesting quotes and details about what ultimately ensued, I won't. Suffice it to say that after months of legal back and forth, the law was on my side, and in the matter of Douglass v. Fairey, I emerged victorious, and a confidential settlement was reached.
It's not a bad article, but that omission makes it kind of a disappointing read. What's missing is what would have been the interesting part, to me anyway. For starters, I'd have liked to know how Fairey responded (initially). Also, Douglass suggests at the end that her hope in sharing this story is that other photographers will realize "that you can fight for your rights and win." That's true, but the details would have lent that concept substance.
posted by cribcage at 10:06 PM on March 7, 2012 [4 favorites]


Christ, that really is a total dick move. Good on the tog for pushing it - the sad reality is that the vast majority of people something like this happens lack either the knowledge or the resources to get what's rightfully theirs.
posted by smoke at 10:09 PM on March 7, 2012


Unsurprising story given Fairey's history. Guy is the worst kind of hypocrite.
posted by sbutler at 10:13 PM on March 7, 2012 [1 favorite]


Fair use and transformative art are, and probably always will be, a pretty wide grey area. Being a dick is a lot more black and white.
posted by JoeGoblin at 10:15 PM on March 7, 2012 [9 favorites]


I called renowned copyright attorney Carolyn E. Wright for advice (www.photoattorney.com), and she took my case. While I could share some very interesting quotes and details about what ultimately ensued, I won't. Suffice it to say that after months of legal back and forth, the law was on my side, and in the matter of Douglass v. Fairey, I emerged victorious, and a confidential settlement was reached.

It's not a bad article, but that omission makes it kind of a disappointing read. What's missing is what would have been the interesting part, to me anyway. For starters, I'd have liked to know how Fairey responded (initially). Also, Douglass suggests at the end that her hope in sharing this story is that other photographers will realize "that you can fight for your rights and win." That's true, but the details would have lent that concept substance.
Yeah.. that's kind of the point of a confidential settlement. No one gets to know what happened. Typically a defendant will just pay cash just to keep things quiet.

It kind of blows my mind that he would pro-actively sue someone and then destroy evidence in the ensuing trial.
posted by delmoi at 10:15 PM on March 7, 2012 [2 favorites]


The obvious solution is to steal his stolen art, touch it up a bit, then resell it without credit.
Right?
Wait..
posted by Malice at 10:36 PM on March 7, 2012 [1 favorite]


I wonder what Fairey was thinking. After all, the AP thing had already started when this happened. And he's the one who reached out to this photographer before he made the piece. Did he seriously think that the simple act of asking about rights and usage was all he had to do, and afterwards he was still welcome to do whatever he wanted? Was that what he ended up taking away from the beginnings of the AP lawsuit? Best case scenario is that he's just plain dumb.
posted by thecjm at 10:40 PM on March 7, 2012 [1 favorite]


Hell yeah. I've despised Fairey for a while, back when my friend in Williamsburg used to talk about him. I tried calling her on her bullshit (she's a close friend like that.) I've got more ammo now. The guy's a real douche. Art world doesn't need guys like him.
posted by ReeMonster at 10:40 PM on March 7, 2012


I wonder what Fairey was thinking.

I bet he was thinking, "Wow, I'm such a great artist. You can't even recognize the original work. I won't have to attribute it anymore."
posted by sbutler at 10:42 PM on March 7, 2012


Am I the only one here that finds both Sheppard Fairy to be a dick, but also finds it ridiculous that the photographer could successfully sue given the huge changes to her work, I mean it's almost unrecognizably the same photo.

Also it seems like what most people really mean about sampling and fair use is that sampling is ok until you've made it into the big time, at which point you have to jump through licensing etc...
posted by sourbrew at 10:44 PM on March 7, 2012


Sourbrew, it might have made a difference if Fairey had never made contact to inquiring about using the photo and agreed to terms of usage. If anything, this is about him breaking a contract and not a fair usage case at all.
posted by thecjm at 10:51 PM on March 7, 2012 [5 favorites]


Guy is the worst kind of hypocrite.

Out of interest, what's the best kind?
posted by Ritchie at 10:55 PM on March 7, 2012 [1 favorite]


I fucking despise Shepard Fairey apologists. Get over the fact you shelled put for an expensive print or felt all edgy for liking his shit before it was cool. He's a complete hack. If he had a modicum of talent then it's purely for marketing, and if you should consider taking anything you own from him and tossing it in a flaming oil drum.

Do you know why he pulled this particular stunt? Because that's all he ever does ever. He gets away with it so often that he does it over and over again. It must be a game to him, to see what he'll get away with. I hope she got a lot of money out of that inauthentic leech, and I hope more artists stand up to him.
posted by jabberjaw at 11:06 PM on March 7, 2012 [2 favorites]


Out of interest, what's the best kind?

My mother?
posted by incessant at 11:09 PM on March 7, 2012 [5 favorites]


You know, I'd kind of like to hear the model's take on all of this.

Am I the only one here that [...] finds it ridiculous that the photographer could successfully sue given the huge changes to her work, I mean it's almost unrecognizably the same photo.


It's clearly the same photo. He appears to have done nothing more than scanning it into Photoshop and hitting the 'posterize' button.

Oh, and cropping out the whole point.
posted by Sys Rq at 11:31 PM on March 7, 2012 [7 favorites]


>I hope she got a lot of money out of that inauthentic leech, and I hope more artists stand up to him.

I am quite sure she did. You would be astonished at what artists with deep pockets have been forced to cough up for flagrant theft of another artist's work. I've heard rumors that Rogers v. Koons was settled for millions. I recall hearing one photography lawsuit that went to a judgement of like $12M but I could not locate it.

I am sure she didn't do this just for the credit, she's just not allowed under the settlement to say what amount she won from Fairey. The problem is, Fairey will not be deterred by this. If anything, he'll be even more motivated by the money he can make by stealing other peoples' work.
posted by charlie don't surf at 11:59 PM on March 7, 2012


He appears to have done nothing more than scanning it into Photoshop and hitting the 'posterize' button.

Not true! He removed an entire piece of jewelry!
posted by XMLicious at 12:29 AM on March 8, 2012 [1 favorite]


Well, yeah... the rock in that ring was weighing down his button-clicking finger.
posted by No-sword at 12:32 AM on March 8, 2012


You can put me firmly in the camp of those who despise Shepherd Fairey's work and think he is, on the whole, a talentless hack with few ideas that don't involve relentless self-promotion and trying to pass off other people's ideas as his own. I remember many an illegal scaffolding billboard in San Francisco's Tenderloin district which obnoxiously advertised his clothing line or Command and Conquer 3 or whatever the hell he was promoting with his warmed-over post "Andre the Giant has a posse" schtick. I once peered up at one of the buildings near the Bottom of the Hill after a show there; not Fairey himself, but rather a group of his "assistants" was installing a Fairey "piece" and I was warned rather rudely and hilariously by a bearded sycophant not to draw police attention to the noisy group of four people who were loudly banging their way up and down a big metal ladder while creating dangerous street art on the side of somebody's house at 12:30 on a Tuesday or whatever.

And yet... and yet! My opinion is that his work is clearly and obviously transformative. Talentless hack or not, he shouldn't have to get permission from that AP guy who took the Obama picture, nor should he have needed to get permission from the photographer who made the (obviously, far superior) artwork that he based his own crappy pastiche on. Furthermore, although as a fellow artist it would be simple common courtesy to accede to her wishes and credit her, I don't feel he must have contacted Ms Douglass and asked for permission to use the original photo as a basis for his own work. To me this is a pretty clear-cut case of fair use.

Let's say for the sake of argument that he really didn't do anything besides take a picture of the original photo, crop out the parts of it that had the most emotional content and artistic merit, and then run the remaining bit through Photoshop's posterize filter. Is that good art? I think most people who care would agree that it's probably not. But is it art at all? Do we really want an apellate court to decide this issue? What if, by contrast, Fairey look one long, searing look at the original photograph, burned it into his memory, and then painstakingly recreated it grain by grain with colored sand after the fashion of Tibetan sand mandalas? Or carved its likeness into a mountain? Those hypothetical artworks seem more legitimate to me, but it seems to me that the difficult question is where to draw the line between acceptable sampling and pure ripping off. That is to say, I don't know that we as a society can outlaw bad, lazy art without outlawing art altogether.

(On preview, I guess I should clarify that I mean "art with a clear and direct inspiration from another artwork" in that last part)
posted by whir at 12:54 AM on March 8, 2012 [1 favorite]


Also it seems like what most people really mean about sampling and fair use is that sampling is ok until you've made it into the big time, at which point you have to jump through licensing etc...

"The big time" is usually synonymous with money and recognition; since there's no way to get half of nothing, why pursue artists who aren't getting those benefits?

The thing is, if the transformation really takes an element and makes it something more, then there's no creative risk in crediting the original. Look up The Avalanches' "Since I Left You" on WhoSampled and check out some of their source material - that record, in my opinion, makes an excellent use of sampled material. Knowing the source doesn't make me think less of the work.

Whereas Shepard Fairey is 1% photoshop and 99% marketing. So far, every time I see what he's sampled, I prefer the original.
posted by dubold at 1:47 AM on March 8, 2012


Oh god, this post reads like a day at work. You stated in an email of the third of blah that you would blah blah do something that doesn't fucking mater and I'm going to blah blah me me me.
posted by mattoxic at 1:49 AM on March 8, 2012 [1 favorite]


Fuck that guy. I wonder if he uses pirated versions of the Mister Retro Machine Wash Plugins, or if he actually bought a license? And where is the background mandala / Celtic knot pattern from? No, really, fuck that guy, I can produce similar right here right now and I do not consider myself an artist. Sour grapes that I don't make millions, sure. But fuck that guy.
posted by Meatbomb at 2:11 AM on March 8, 2012


And yet... and yet! My opinion is that his work is clearly and obviously transformative. Talentless hack or not, he shouldn't have to get permission from that AP guy who took the Obama picture, nor should he have needed to get permission from the photographer who made the (obviously, far superior) artwork that he based his own crappy pastiche on. Furthermore, although as a fellow artist it would be simple common courtesy to accede to her wishes and credit her, I don't feel he must have contacted Ms Douglass and asked for permission to use the original photo as a basis for his own work. To me this is a pretty clear-cut case of fair use.
He might not have have had too... but since he did ask and he agreed to her terms then they would have had a verbal contract, I would imagine.
Fuck that guy. I wonder if he uses pirated versions of the Mister Retro Machine Wash Plugins, or if he actually bought a license? And where is the background mandala / Celtic knot pattern from? No, really, fuck that guy, I can produce similar right here right now and I do not consider myself an artist. Sour grapes that I don't make millions, sure. But fuck that guy.
You don't really need filters like that to produce images like that. It's pretty easy to do if you have some textures to use.
posted by delmoi at 2:23 AM on March 8, 2012


Funny that I finish reading this and the comments and go back in time to the the Invisible Children post (because I live in a bubble apparently and missed the viral wave).

He pops up in that disingenuous video.
posted by panaceanot at 4:01 AM on March 8, 2012


Ritchie: "Guy is the worst kind of hypocrite.

Out of interest, what's the best kind?
"

A strident Objectivist who secretly commits acts of charity.
posted by vanar sena at 4:23 AM on March 8, 2012 [20 favorites]


As someone who might have affixed an Andre The Giant Has a Posse sticker to my possessions or my suburban town's streetsigns in 1991, this bums me out.
posted by These Premises Are Alarmed at 4:39 AM on March 8, 2012


Art world doesn't need guys like him.

He's exactly what the art world needs. Without sociopaths running amok trampling on the rights of others we would have a boring life to live.
posted by jsavimbi at 5:03 AM on March 8, 2012


whir: Let's say for the sake of argument that he really didn't do anything besides take a picture of the original photo, crop out the parts of it that had the most emotional content and artistic merit, and then run the remaining bit through Photoshop's posterize filter. ... That is to say, I don't know that we as a society can outlaw bad, lazy art without outlawing art altogether.

This sounds right to me. And yet if Dina decided to take a photograph of Fairey's work, and display it to the public in her studio, I think the shitstorm would be intense.
posted by superelastic at 5:12 AM on March 8, 2012 [1 favorite]


Is this about the ending to Mass Effect 3?
posted by yoHighness at 6:19 AM on March 8, 2012 [1 favorite]


I mean it's almost unrecognizably the same photo.

I'm not really seeing that. I think it looks exactly like the photo, but cropped and with the "Fairy Filter" turned on in Photoshop. And yes, that's FAIRY
posted by ReeMonster at 6:23 AM on March 8, 2012 [1 favorite]


Out of interest, what's the best kind?

Someone who says "I'm not giving you any of this candy loser!", then gives you your favorite kind? ;)

If he had a modicum of talent then it's purely for marketing

This is something that depresses me as a photographer. I've been told numerous times that it doesn't matter how good or bad you are, if you are a good marketer or know the right people, then you will do well. If not, you're boned. :P
posted by usagizero at 6:34 AM on March 8, 2012 [1 favorite]


You know, I'd kind of like to hear the model's take on all of this.

Odds are she signed a model or usage release, and the photographer owns the copyright. I would like to know how she feels on the fact that what the image was originally about seems to have been removed to just show her face.
posted by usagizero at 6:38 AM on March 8, 2012


I'm not really seeing that. I think it looks exactly like the photo, but cropped and with the "Fairy Filter" turned on in Photoshop. And yes, that's FAIRY

Ehh I mean on closer examination they are the same except for the crop and the photochopped out necklace but I would wager if you were at a gallery show of say 100 - 150 paintings / photos and at the end of the day you were asked if anything stood out to you, you would have not at any point during that day put the two pieces of art together.

Which again is not to defend Shepard Fairey because he is clearly being a dingleberry, but to instead reiterate that I think his use of it should be easily covered by fair use.
posted by sourbrew at 7:00 AM on March 8, 2012


So far, every time I see what he's sampled, I prefer the original.

Next up. . .

Jimmy Page!
 
posted by Herodios at 7:22 AM on March 8, 2012


I also wanted to note that this article buries the lede on Fairey, which is that he pled guilty to destroying documents and manufacturing evidence in the Obama Hope poster case and faces up to six months in prison.
posted by whir at 7:38 AM on March 8, 2012


Ehh I mean on closer examination they are the same except for the crop and the photochopped out necklace but I would wager if you were at a gallery show of say 100 - 150 paintings / photos and at the end of the day you were asked if anything stood out to you, you would have not at any point during that day put the two pieces of art together.

Really? I think they look exactly the same. Who knows whether you would notice the similarity in a gallery show of 100 - 150 artworks, but this is a ridiculously oversized arbitrary number compared to most showings I've ever attended. We're not talking about 5 hours at the Met Museum. If it were a real gallery showing of, say, 20 - 30 artworks, I have no doubt whatsoever I would recognize that both works contained iterations of the same image and that Fairey's work was based on Douglass's.
posted by slkinsey at 7:45 AM on March 8, 2012


whir: "I also wanted to note that this article buries the lede on Fairey, which is that he pled guilty to destroying documents and manufacturing evidence in the Obama Hope poster case and faces up to six months in prison."

Blah blah blah i am an Artist which means I have a unique and transformative vision you will never understand blah blah the law should not apply to me as that would be stifling the expression of Art blah blah blah stupid philistine how dare you suggest my portrait of Big Bird is anything possibly inspired by anything as pedestrian as a photograph it is sheer raw magical inspiration...
posted by Samizdata at 8:26 AM on March 8, 2012


Out of interest, what's the best kind?

The kind of person who imposes a really high bar for personal success and behavior, but is extremely forgiving of other people's faults.
posted by davejay at 9:57 AM on March 8, 2012


er, a really high bar for their own personal success and behavior
posted by davejay at 9:58 AM on March 8, 2012


Fairey: "hey Ms Douglass can I do work based on your photo?"
Douglass: "Sure! Just give me credit and let me photograph you with your version before it goes out for exhibition."
Fairey: "Will do! Thanks a lot."

TIME PASSES

Fairey exhibits the piece with no credit to the original photographer, and no contact for the photo shoot.

I don't see how anyone can defend Fairey on "fair use" grounds. He asked permission to use the image, he was given very liberal terms of use to which he agreed, and he completely failed to comply with. It doesn't matter if he was "sufficiently transformative" or not; he went to Douglass and ASKED HER ON WHAT TERMS HE COULD USE HER PHOTO AS A SOURCE IMAGE.
posted by egypturnash at 10:02 AM on March 8, 2012 [2 favorites]


Well, I guess my point is that it might make him an ass not to ask, but I don't feel that he should need to ask her permission at all. (I suppose that once he did, he possibly has entered into a verbal contract as delmoi suggested, but to my mind that's a different matter than the question of whether his work constitutes fair use of the original artwork.)
posted by whir at 10:09 AM on March 8, 2012 [2 favorites]


whir, I'd say he very definitely and explicitly has entered into a verbal contract. This isn't about fair use at all (as you note).
posted by IAmBroom at 11:37 AM on March 8, 2012


I fucking despise Shepard Fairey apologists.
--
Fuck that guy.
--
You can put me firmly in the camp of those who despise Shepherd Fairey's work and think he is, on the whole, a talentless hack with few ideas that don't involve relentless self-promotion and trying to pass off other people's ideas as his own.


Man, Damien Hirst must be breathing a little easier now that all the 'i channel every portion of my soul into the infinite hatred of (x)' folks are focused on Fairey now.

Haha, just kidding, neither of them care one bit.
posted by FatherDagon at 2:26 PM on March 8, 2012


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