Art from Art

In my judicial interpretation of U.S. Copyright Act, Shephard Fairey’s revision of the Associated Press photo would be protected by the fair use defense because the nature of the photo, the character of the use, and the effect on the market were such that the AP was in no way defrauded or deprived. Fairey altered not only the image’s color scheme, he also captioned it and changed the direction of Obama’s gaze while retaining the same composition i.e. the facial outline. The alterations had a transformative effect on the work. Captioned as it is Fairey’s work should be protected as a political commentary on par with criticism or parody. The non-commercial character of the use accompanied by the viral cooperative manner in which the revision was even further altered, transferred into different mediums (collage, stencils, posters, stickers, murals, digital art, fashion) and inserted into public space make it simultaneously grass roots political speech and art. The anti-commercialism of Fairey’s punk cultural context is critical in interpreting his purpose.
That Shephard Fairey went on to do commercial work, in keeping with personal ethical standards, is incidental. His professional reputation profits from cultural phenomena and its political implications but Fairey still should not be penalized for his use of the image. News events, context, the way a man looked when he looked at a camera, the content of reality should not and can not become something a company can just own for more than a decade. We only get to keep a president for eight years. Iconic images will arise. Granted they aren't just free floating in the public domain to be picked up and photocopied and sold; however, in this case after Mannie Garcia captured a moment in a photograph Fairey responded to it in a political, artistic, non-commercial way which likely increased the exposure and prestige of the original photograph and did no conceivable harm to the AP. He has never denied the influence of the original image and he has made no effort to collect from street or internet vendors making money off of derivatives of his work, indicating to me that AP’s claim of degradation of the value of their work and their ability to make money from their copyright is unfounded.

The black and white photograph of the juxtaposition on the left (extracted from this video) exhibits both the context of Fairey’s Obey street art and the infinite opportunities for artists to riff off each other. In my opinion this presumably copyrighted photograph's unique existence is dependent on Fairey’s execution of his Obey piece to the same degree that Fairey’s later Hope poster is dependent on the existence of Mannie Garcia’s copyrighted photograph and it, to me, is all art.