Copy Cats and Diamond Skulls Special report
Is Shepard Fairey an artist, a criminal, or a downright copy cat? HUCK gets into the legal nitty-gritty to find out.
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When British artist Damien Hirst decided to make art with diamonds, his work caused quite a stir. “For the love of God! What are you going to do next?” That, reportedly, was how Hirst’s mum reacted to her son’s most extravagant piece of work – the skull of an eighteenth century European male inset with 8,601 diamonds, weighing 1,106 carats and worth £14 million. The phrase stuck, and the skull was named ‘For the Love of God’. In December 2008, eighteen months after the skull first went on public view, Hirst got in touch with a sixteen-year-old stencil artist going by the moniker Cartrain. It was no friendly exchange. Through a representative of the Design and Artists Copyright Society, Cartrain was instructed to remove a piece he was selling through the online gallery 100artists.com, and to relinquish all unsold originals. If he refused to do so, he would face prosecution for copyright infringement. His so-called crime? Incorporating an image of Hirst’s skull into his work. Hirst refused to comment on the matter.
“You can follow the trail of ideas right back to the stone age. If an artist tries to halt the forward flow of ideas and claim ownership of an idea the whole system grinds to a halt.”
Stateside, there’s a similar story. Shepard Fairey – the street artist behind the now ubiquitous ‘Obey Giant’ sticker campaign – has been respected in urban art circles for years, but just recently the LA-based graphic designer leapt into the limelight, thanks in no small part to his now iconic poster of Barack Obama. Entitled ‘Hope’, the poster displayed a poise and intellect Obama’s predecessor (and competition) could only dream of. According to the New Yorker, Fairey’s poster was “the most efficacious American political illustration since ‘Uncle Sam Wants You.’” It became one of the defining images of the election and, fly-posted in areas where politics had yet to become cool, it helped democratise the electoral process. “I am privileged to be a part of your artwork,” stated Obama in a letter to Fairey in February 2008, “and proud to have your support.” A copy of the image now hangs in the National Portrait Gallery of Washington DC.
But while the poster was Fairey’s work, its source certainly wasn’t. Fairey’s portrait was in fact a stencil impression of a photo he’d found through Google. For a while, the original photo went unaccounted for until, in February 2007, a computer programmer from Philadelphia did a bit more Googling and came across what he thought to be the source: a photo taken by the relatively unknown Reuters photographer Jim Young. Freelance photographer and blogger Tom Gralish, however, was not convinced. Comparing the two images, it seemed the direction of Obama’s gaze was not quite identical. Having just covered the presidential inauguration, Gralish returned home and, high on adrenaline, was unable to sleep. Armed with clues from fellow photojournalists, he headed back to Google determined to solve the mystery. And he did. On the ninth page of images he struck gold, finding a headshot taken by freelancer Mannie Garcia. Satisfied, Gralish fired off an email to Garcia, and went to bed.
A lawsuit was the last thing on Garcia’s mind when he heard the news. “I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work," he told Gralish. However, the Associated Press, who Garcia was working for when he took the photograph, didn’t see it that way. In an ironic statement, Paul Colford of AP’s Media Relations team said, “AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others.” In spite of Garcia’s approval for the image’s use, they pursued Fairey’s attorney, seeking compensation for his exploitation of a copyrighted work, in what Fairey termed “a suppression of an artist's freedom of expression.”
The act of making and recording a work – putting pen to paper or clicking a shutter – is all it takes for that work to be copyrighted. Registration, or even inclusion of the © symbol, is not actually necessary. What you then do with that copyright is your own business. In 1960, fashion photographer Alberto Korda was in the crowd at a memorial for those killed in a munitions ship explosion in Havana, Cuba. On a roll of forty, the last frame he shot was of Che Guevara. The resulting portrait, Guerrillero Heroico as it was named, is now the most recognised image of Guevara and, according to the Victoria and Albert Museum, the most reproduced image in the history of photography. Allied to the cause of the revolution, Korda surrendered all rights to the portrait, allowing its free distribution and never asking for a penny.
The idea of copyright is based on two principles: economic rights (i.e. the ability to exploit a work for profit); and moral rights (i.e. being recognised as the person who created that work). Even with copyrighted works, there’s still scope to reuse and reinterpret. With AP’s lawyers determined not to follow Korda’s approach, Shepard Fairey responded to their demands by countersuing, claiming his poster was ‘fair use’. The rules of fair use allow the work of others to be incorporated into new works, provided that new work doesn’t supersede the original.
Unless Fairey and AP are able to come to an agreement, the decision as to whether ‘Hope’ was a fair use of Garcia’s image will be decided by the courts. But has copyright law – originally introduced to encourage creativity – become nothing more than a way for the greedy to stifle new thought?
When the art collective L13heard of Damien Hirst’s threats against Cartrain, they responded in the only way they knew how: “We indulged ourselves in the sport of major copyright infringement.” Creating a website called Red Rag to a Bull, the group sold limited-edition reproductions of Cartrain’s piece, and, to provoke further controversy, a picture of Hirst’s ‘For the Love of God’. “We artists do sometimes benefit from protecting our copyright but only up to a point,” says Red Rag’s Jimmy Cauty Bull. “Hirst went past the point. Cartrain was not trying to pass himself off as Hirst; he appropriated a major cultural reference point as part of a new work.”
Cartrain’s work was not meant to take the place of the original, but to comment on it. “All art is subverted from other art,” adds Jimmy. “You can follow the trail of ideas right back to the stone age. If an artist tries to halt the forward flow of ideas and claim ownership of an idea the whole system grinds to a halt. Besides, the Hirst image of the diamond skull has been reproduced thousands of times in the last year, so it’s virtually in the public domain.”
Where this goes in the future is anyone’s guess. What is clear, is that through an unlikely coupling, a British teenager and an American graphic designer have drawn attention to an issue that won’t go away. Sure, creative work needs protecting, but so too does the right of others to create new works which draw upon what’s already out there. And besides, imitation is the greatest form of flattery, right
To read the full feature, check out HUCK #014.
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Copy Cats and Diamond Skulls (text) by Olly Zanetti is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.Comments (5)
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All works are a product of all that has can before, both directly and indirectly, Standing on the shoulders of giants and all that...
He is to art what certain expense plundering politicians are to politics.
As for the Obama poster - Barack Obama is as near to public property as a public servant can possibly be and a worldwide symbol of hope, tolerance and intelligence.
If the photographer charges the artist for his interpretation of a photo, Obama should refuse consent for said phtographer to ever take his photograph again.
If the artist printed said photo in a newspaper without paying for it and made money, then he might have an argument.
http://www.dailymail.co.uk/new.....TO=1490