Shepard Fairey - Legal Issues With Appropriation and Fair Use

Legal Issues With Appropriation and Fair Use

See also: Fair use, appropriation art, and Copyright infringement

Fairey has been criticized for failing to obtain permission and to provide attribution for works he used. Fairey has threatened to sue artists for the same technique. Austin, Texas graphic designer Baxter Orr did his own take on Fairey's work in a piece called Protect, with the iconic Obey Giant face covered by a SARS respiratory mask. Orr marketed the prints as his own work. On April 23, 2008, Orr received a cease-and-desist order from Fairey's attorneys, telling him to stop selling Protect because it violated Fairey's trademark. Fairey threatened to sue, calling the designer a "parasite".

Originally, Fairey had claimed his HOPE poster was based on a 2006 copyrighted photo of then-Senator Barack Obama seated next to actor George Clooney, taken in April 2006 by Mannie Garcia on assignment for the Associated Press (AP), which wanted credit and compensation for the work. Garcia believes that he personally owns the copyright for the photo, and has said, "If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it's had." Fairey said his use of the photograph fell within the legal definition of fair use. Lawyers for both sides tried to reach an amicable agreement.

"Fair use" is determined by how much a new work changes an older one. At first Fairey claimed he used the photo of Clooney and Obama and cropped the actor out of the shot and made changes. In February 2009, Fairey filed a federal lawsuit against the Associated Press, seeking a declaratory judgment that his use of the AP photograph was protected by the fair use doctrine and so did not infringe their copyright. In October 2009 Shepard Fairey admitted he had tried to deceive the Court by destroying evidence that he had instead used the photograph alleged by the AP. Fairey admitted he had used a close-up shot of Obama, also taken by Mannie Garcia, as the AP had long alleged. The solo photo appears much more similar to the final HOPE poster than the photo of Clooney and Obama.

Fairey's lawyers announced they were no longer representing him, and Laurence Pulgram, an intellectual property lawyer stated that the revelation definitely put Mr. Fairey's case "in trouble". In May 2010, a judge urged Fairey to settle. The parties settled in January 2011. On February 24, 2012 Fairey pleaded guilty to criminal contempt of court for "destroying documents and manufacturing evidence." On September 7, 2012 Fairey was sentenced to 300 hours of community service, ordered to pay a $25,000 federal fine, and placed on probation for two years by U.S. Magistrate Judge Frank Maas.