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Most unsatisfactory

Hello. Remember this guy? This is a mug shot of Shepard Fairey, the HOPE poster dude. And the Feds want him to do time in federal pound me in the ass prison.

The Associated Press took him to court for tracing the Obama picture used in the poster, which belonged to AP. You’ll find the court docs at the link. I gather (though I am no law-talking weasel), the main points are:

  • He claimed he used the photo as reference, but it’s pretty obvious it’s a straight up trace (see overlay)
  • He claimed he made around $150,000 off the image, but his companies seem to have pulled off a profit of around $12 million over three years, which surely wouldn’t have happened without the iconic poster
  • Based on the above, he offered AP a settlement of a weak $100K, when they probably would have gone away for a substantially bigger sum
  • He already has convictions for (reading between the lines, what I assume to be) public graffiti (that was his main gig before the poster: “street artist”

But the Feds are opting to ignore all that. They want him to do time for deleting some emails and fabricating others trying to game the case.

Sure. Okay. Fair enough. Coverup worse than the crime and all that, but leaving the whole rest of it unaddressed is really unsatisfactory. Because I (and millions like me) do what he did, every day — snag news photos, P’shop all over them and post them on the web. It’s a whole cottage industry. And we would really like some guidelines here.

How strong was the AP’s claim? Would any amount of artsy transformation weaken that claim? Did the fact Fairey made a shitload of money make a legal difference? They brought all these questions up, and then left them dangling.

Years ago, when I made art for a big corporation with deep pockets, I wouldn’t go NEAR anyone else’s copyrighted content. Not even for the most ephemeral images. The very idea gave me the shivers. And for the longest time, I wouldn’t do it as a blogger, either. And then I realized everyone — EVERYONE — was having a blast P’shopping photos and nobody was going to federal pound me in the ass prison and I was totally left out of the fun. So I gave in.

But there’s still that worried corner of my mind that knows everybody else does it is a lousy legal defense.

Okay. Back here. Tomorrow. Six sharp, WBT. Round Bzillion of the Dead Pool!


Comment from Oceania
Time: September 6, 2012, 11:21 pm

Dead Pool?
Lets depopulate the world to 5% of its present population!

Comment from m
Time: September 6, 2012, 11:38 pm

Lead the way, dude.

Comment from QuasiModo
Time: September 7, 2012, 12:00 am

Well, Obumbles was a senator at that point if I’m not mistaken…I don’t think anybody should be allowed to ‘own’ intellectual property rights on the image of a public figure…basically the dude gave the image a communist agit-prop treatment…that’s what he was selling.

Kinda the same as that Zombie Reagan treatment SWeasel did…I have a coffee cup with it right here 🙂 …I’ll donate to your legal defense if it comes up…better start a PayPal.

Comment from Joan Of Argghh!
Time: September 7, 2012, 1:04 am

As he is a local “hero” in my town, let me just say that his ripoff art is ALL he has. For over 20 years! Does Zombie Reagan has a distinct distortion enough to render it original? I think so. But Fairey’s work is not quite collage, it’s merely copy/mashup and retro. Not an original idea in his head. For 20+ years. I say they should throw him in the Fed for being a lousy poseur art hipster. Ain’t that enough?

He makes his money off of iconic images that other artists have taken the time to go after, capture, tweak, crop and publish. He’s pissed off the wrong people. He’s got a lot of money. That’s a bad combination for someone who has lingered too long in his juvenile fantasies of untouchable coolness.

Besides, going to the Joint will only increase his asking price for his execrable communist propaganda posters.

Comment from Christopher Taylor
Time: September 7, 2012, 1:38 am

Fairey annoys me for his creepy 30’s dictatorship fan art of Obama but I have a serious problem with this case. So the picture is almost a trace of the picture… its NOT THE PICTURE. He changed it substantially and shifted the colors, creating something new. I cannot see how on earth anyone has a case here.

Comment from Dubya Bee
Time: September 7, 2012, 1:45 am

His real crime is being a pimp for that chunk of fecal material sitting in the Oval Office.

Comment from EZnSF
Time: September 7, 2012, 2:08 am

Death to taggers.

Comment from mojo
Time: September 7, 2012, 4:22 pm

I’d say you can use any photos you like as the basis for a new image – just don’t try and bullshit the owners when they come calling, and offer them a reasonable cut.

In short: don’t be an ass.

Comment from jay-dubya
Time: September 7, 2012, 4:53 pm

Ima thinking that “fair use” is fine with most folks- until you start to derive income from what was, in fact their(at least partially) work. Seems simple- if you’re giving it away, no worries. If you’re selling it- prolly best get use permission. Just my 2 pennies…

Comment from Some Vegetable
Time: September 7, 2012, 5:10 pm

I am just simple-minded enough to enjoy the sweet, sweet taste of schadenfruede here.

One who tried to cash in on the Hope in the One, gets screwed by the government of One.

It’s a one-one situation here

Comment from S. Weasel
Time: September 7, 2012, 5:42 pm

Zombie Reagan isn’t based on any particular image, so it’s not an issue there. But, actually, photographers are often touchy as HELL about reuse of their images, probably because they get ripped off all the time.

They *do* have a case against you if an illustration is demonstrably derived from a copyrighted photo and cleaves too close to it. Which is why I wish they’d dealt with it a little more in Fairey’s case, rather than goosing him about the false emails instead.

Comment from Stark Dickflüssig
Time: September 7, 2012, 7:19 pm

It’s like Clinton: getting head in the White House makes you a scum bag, but not illegal. Lying under oath to congress should get you a few years of pillow biting.

Comment from Rich Rostrom
Time: September 7, 2012, 8:01 pm

Ken at Popehat had a rant about this a while ago. He’s a former Federal prosecutor turned defense attorney.

This is his point: the law now states it is a Federal felony to make a false statement to a Federal LEO. And the courts have convicted people for this whether the falsehood was intentional or accidental, and without regard to whether it was material to any criminal investigation.

Which is to say, it’s not just lying about crimes, it’s any statement on the record the Feds can show later was false. If they ask you when you had coffee with Joe Schmoe on March 17, and you say it was 2 PM, and it was actually 1 PM – that’s it, they can imprison you. Even if neither you or Joe Schmoe has ever been convicted of or charged with a crime.

Which is why Ken says never talk to Feds – ever – without your lawyer present, and without prefacing every sentence with “To the best of my recollection at this time…”

Don’t assume that because you aren’t a criminal that they know that; and don’t want to use/crush you in whatever they are doing.

Comment from Joan of Argghh!
Time: September 8, 2012, 12:02 am

Well, he got off the hook with a wrist-slap.

Somewhere, Martha Stewart is sighing.

Comment from Timothy S. Carlson
Time: September 8, 2012, 9:45 am

Off with probation, 300 hours of community service, and a $25K fine.


Comment from Mike James
Time: September 9, 2012, 4:40 am

That picture is just the way I imagined that Fairey looked.

And I, too, am a proud owner of the Zombie Reagan coffee cup. First time in my life I ever had street cred–and a reasonable sized portion of heart-starter.

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