The hypocritical Shepard Fairey

As one of my students, Marc Larocque, puts it, “Shepard Fairey is a hypocritical scumbag.” That’s really the only proper reaction you can have upon learning that Fairey, who’s fighting a copyright complaint lodged by the Associated Press, has himself charged an Austin artist with copyright violation for doing exactly the same thing.

The artist, Baxter Orr, took Fairey’s iconic image of Andre the Giant and put a respiratory mask on it — precisely the sort of “transformative” use that Fairey is relying on in his own repurposing of the AP’s Barack Obama photo to make his Obama “Hope” poster. Boston Globe cartoonist Dan Wasserman has all the details.

Fairey is up to his neck in it at the moment, filing a pre-emptive lawsuit against the AP and defending himself against vandalism charges brought by the Boston police. I still think his Obama poster is protected under the fair-use exception, as I wrote last week. But so is Orr’s Andre the Giant image. These are nearly identical cases, and it’s amazing that Fairey doesn’t see it that way.

Update: Gee, Fairey’s problem with Orr couldn’t have anything to do with the fact that Orr seems less enamored of Obama than Fairey does. Could it?

15 thoughts on “The hypocritical Shepard Fairey

  1. L.K.

    It’s all about money, now, isn’t it.As for Fairey’s work being “art”? Let’s see if it is still getting rave reviews twenty years from now.Fairey sees himself as part of the entitled generatrion.

  2. io saturnalia!

    Whoops … I was looking at the wrong “protect yourself” icon. Of course, it doesn’t help that Fairey’s “Andre the Giant” looks nothing like Andre the Giant, at least not Andre the Giant the professional wrestler.

  3. jvwalt

    I see an important difference between the Obama/AP and Andre/Fairey cases. In the Obama case, Fairey took what was essentially a stock photograph — one of a million similar images of Obama — and turned it into a work of art. In the Andre case, Orr appropriated for his own purposes a copyrighted, high-profile work of art. Until the Obama poster, the Andre work was Fairey’s primary claim to fame. If I were him, I’d be trying to protect my interest. And the politics of the borrower would make absolutely no difference.

  4. Robert David Sullivan

    I largely agree with jvwalt’s comment above. There was obviously a lot of deliberation in Fairey’s poster with respect to colors, shading, and treatment of type. I think 99 percent of people who saw the original and altered Andre the Giant images would assume the same artist did both. Fairey can be called hypocritical, but it’s more outrageous to claim copyright on the tilt of a head than on the highly stylized Andre image.

  5. Jose

    Dan, you need to teach your student the difference between a copyright and a trademark. Keep in mind that Fairey has not pursued any of the Obama/Hope parodies — and there are many out there. A trademark is not granted automatically, it is pursued (at great expense) in order to protect a commercial enterprise. Baxter is in basically the same business as Fairey; his use of the image can produce confusion in the marketplace. As Joe Pantoliano says in Risky Business, “never ever f*ck with another man’s livelihood.”

  6. Jose

    Dan, you need to teach your student the difference between a copyright and a trademark. Keep in mind that Fairey has not pursued any of the Obama/Hope parodies — and there are many out there. A trademark is not granted automatically, it is pursued (at great expense) in order to protect a commercial enterprise. Baxter is in basically the same business as Fairey; his use of the image can produce confusion in the marketplace. As Joe Pantoliano says in Risky Business, “never ever f*ck with another man’s livelihood.”

  7. Dan Kennedy

    Jose: We’ll get into that a bit later this semester. But you may recall that Fox News trademarked the phrase “fair and balanced,” and threatened Al Franken when he used it in the subtitle of one of his books. Fox didn’t get anywhere, because Franken was using “fair and balanced” as a parodic comment on Fox. The parallel here seems pretty obvious.

  8. Dan Kennedy

    Jose: And other part of trademark is that if anyone else had tried to start a news program and promoted itself using the phrase “fair and balanced,” Fox would have had a case.

  9. Lady Xoc

    Doesn't it bother anyone that Fairey has infringed on the "trade dress" of Barbara Kruger? cf: the "Andre/OBEY" graphic. The color & typography is identical. This is no small consideration. She made a very successful career built on those elements.

Comments are closed.