Despite its appearance, this is not a political article, although with enough prompting, I would be glad to write one. ;) In a bizarre twist of fate, Shepard Fairey, the creator of the iconic “Hope” poster of the then-Senator Obama, was sentenced to 2 years of probation for copyright infringement and tampering with evidence, required to provide 300 hours of community service, and fined $25,000. As part of the civil case settled last year, Fairey was also required to pay the AP news service $1.6 million and 50% of future “Hope” poster profits. During the proceedings, investigators discovered that Fairey had grossly under-represented his profits on sales of “Hope” related items. It seems that “Hope” was based on a completely false premise – that Fairey had NOT infringed upon the rights of others. Another reminder that some things are not what they appear to be…
AP believed that Fairey had used a photo, taken by an AP photographer, Mannie Garcia, in 2006, as the foundation for the famous “Hope” poster. AP sued Fairey for copyright infringement. And with an apparent sense of righteous indignation, Fairey countersued. Unfortunately for Fairey, the ensuing investigation showed that he had lied regarding which image he relied on to create the “Hope” poster, and destroyed evidence related to the case. Fairey admitted his mistakes in court and issued a statement on his website today.
Fairey became an overnight success and earned over $1 million from “Hope” poster sales. Fairey’s newfound fame undoubtedly helped him land other lucrative contracts as well. The “Hope” poster was the most iconic symbol of the 2008 Presidential campaign, and perhaps the single most popular political icon of all time. Some even credit Fairey’s “Hope” poster with helping Obama win the election by transforming him into a cultural icon for American’s youth, attracting this elusive constituency to polling booths in record numbers, and increasing campaign donations – quite a lofty set of accolades for an artist, or anyone else for that matter. Fairey’s Obama icon spawned a series of “Hope” styled images of other celebrities, and websites such as “obamiconme,” which enabled anyone to upload a photo and easily create their own “Hope” like image.This issue would likely never have seen the light of day had Fairey simply acknowledged the source of his image and was reasonable in sharing his profits with AP – rather ironic considering some of the campaign’s messages.
A few months ago, I wrote an article outlining how I, and many others, believe Pinterest has run afoul of the Digital Millennium Copyright Act, by enabling people to store others’ full size photos on Pinterest’s servers and distribute those images without the permission of the owners. Some argued that such policies fell under the guidelines of “fair use.” I believe that the preponderance of digital images available on the internet, and the internet’s paradigm of “free,” heavily influences (often incorrectly) many people’s thoughts regarding intellectual property and what actions they can and cannot perform relative to the photographs of others. There were some very “lively” debates on this and many other forums regarding the topic of copyright issues, and they are far from over. Fairey’s commentary gives us some insights into how he and many others view these matters.
As the Fairey/AP case shows, we are not free to do what we wish with others’ photos. There are laws that cover these issues and courts that will enforce them. The money associated with this case was likely the least of AP’s concerns. Making sure that AP sent a clear, unmistakable message to others that might think to misuse its photos or other content in the future? Priceless… I suspect we have not seen the last of such lawsuits. And just in case you are wondering, my use of this image does indeed fall under the guidelines of “fair use!” ;)