AP answers Shepard Fairey pre-emptive lawsuit, accuses artist of infringement

Remember Shepard Faireys bold move which seemed to invent the preemptive lawsuit last month? The Associated Press has responded with a countersuit - and in it they paint Shepard Fairey as a hypocrite who acted in bad faith. And they're calling him a bit of a weasel to boot: adressing last months suit AP says Fairey deliberately cited the wrong AP photo as his source image. The Fairey lawsuit cited a Garcia photo that included both then-Senator Obama and actor George Clooney - not the photograph by Garcia that I'm showing next to Faireys poster here. The AP says this misidentification “can only be understood as a deliberate attempt to obscure the Obama Photo as the true source material for the Infringing Works and to minimize the nature and extent of Fairey’s unauthorized copying of the Obama Photo.”

The countersuit also cites letters that Fairey sent to fellow artist Baxter Orr last year, asking Orr to stop using a design that copied Faireys “Obey” image. “Fairey is hardly a champion of the First Amendment,” the AP says and continue by pointing out that Fairey has made quite a lot of money off the works of others while being “hypocritically and aggressively" in protecting his own intellectual property.

Fairey's defense? The usual “fair use” and “I didn't do it to make money” . (Because derivative work that leaves you broke somehow gets you off the hook?)

Read more at Photo District news: AP Answers Shepard Fairey Lawsuit, Accuses Artist of Infringement
Previously : Shepard Fairey Sues AP Over Obama Poster Dispute

Some have been calling Fairey a plagiarist for a while, see this critique by artist Mark Vallen and also jmacphee response to that article which identifies Fairey's use of the modern advertising tools and language as a great big ad for Fairey himself.

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Yankees's picture

This guy is a total thief. Dug his work until I found out that none of his work is his.

See this link for a breakdown of all his "work". Terrible.


AlphaSquirrel's picture

Thanks for the link to the Vallen article — I'd read that a while back and forgotten about it.

Not really a Fairey fan, but it will be interesting to see how this plays out. Seems to me that the ruling is going to be pretty subjective if the whole thing winds up being about "does it qualify as a new piece of art?".

I admit, I'm kinda on the fence on this one.

adlib's picture

Yeah thanks for both of those links you gave, I hadn't seen the Vallen article (also linked by Yankees) nor the response, both worth aread. This is from the response link: http://www.justseeds.org/blog/2007/12/a_response_to_obey_plagiarist_1.html

I understand that Fairey is not simply using social movement history and other artists work, but immensely profiting off it. One important thing to acknowledge is that Fairey is not just appropriating, but also copyrighting images that exist in our common history. Posters and graphics made in the heat of political struggles are often made by anonymous individuals or groups that want to keep the images in the public domain for use in further struggle. It is unfortunate that Fairey is attempting to personally capitalize on the generosity of others and privatize and enclose the visual commons (as seen by the prominent copyright symbols on his website and products). But once again, this is the machinations of capitalism, not simply Fairey as an individual. Can Nike profit from social movements but not Fairey? How about a supposedly "good" corporation, like one that makes windmills or solar panels?

Dabitch's picture

Like AlphaSquirrel, I think it'll be interesting to see how it pans out. Oh and preemptively filing a suit against AP? BALLS!

Yankees's picture

I would be as well, but I was blind to the history of his stealing artwork and then not only calling it his own, but selling it in books, t-shirts, etc.

Again, was a fan until I found out the guy is a fraud.

The preemptive lawsuit says to me he is seeking to win in the court of public opinion, not a real court. He gets to put on record that he is some poor street artist that he is getting hosed by the man.

It would have worked if his entire career wasn't one big rip off.

Wall Street has Madoff and now design has Fairey.

AlphaSquirrel's picture

I'm assuming that the lawsuit will be decided on the basis of the Obama image alone — unless his history of … umm … "referencing" is allowed.

The artworks discussed in those articles? Looks more like plagiarism to me. The Obama image though, less a direct lift than a lot of his other graphics. It's a great photo, but that visual wasn't really an icon until it was made into the poster — unlike those other cases.

adlib's picture

The comments in the jmacphee response are also well worth a read. It seems to me that Fairey is a cynical bastard using the premptive suit to gain even wider recognition.

I've used to think that Fairey's idea all along was to recycle past struggles imagary to send the signal that the current struggle is consumerism, but then he went and turned it into a shop and made political posters for Obama (which in hindsight is as iconic as the Angela Davis poster he ripped off), now I don't know. His constant and as the lawyers say, aggressive defending of of any "Obey the X" or similar images to him also signal that he is simply in it for the money. It's OK for him to regurgitate older art to "make a comment", but nobody can regurgitate his to make a comment?

luketheobscure's picture

While we're at it, somebody should really sue that Andy Warhol guy. That Campbell soup can was clearly an infringement on Campbells owned intellectual property, and his Marilyn was based on a photo of her that he did not take!

Yankees's picture

Warhol didn't do a photoshop job, he actually painted those images.

If Warhol had "xeroxed" them you would have a point, but Fairey's "machine art" is nothing anyone with a scanner and photoshop/ illustrator couldn't do.

I'm looking beyond this poster and the entire body of "work" from this guy and he is a complete fraud and in turn gives the entire design community a bad name that anyone with a scanner, some source art and photoshop can "design.

Dabitch's picture

I know the thread is kinda dormant here, but I just found this which I thought rather funny. A statement regarding health care reform done in Fairey style (and using the same Obama image - except turning him into Hitler this time).

Sue me Shepard Fairey

...Since then I’ve received a few request to turn it into a T-shirt. I never did because I basically stole Shepard Fairey’s work and it seemed wrong to sell an image that I took from another artist and made minor tweaks to. But then I remembered that’s exactly what Shepard Fairey did with Mannie Garcia’s AP photo.