Art Markets: President’s image on campaign poster subject of lawsuit

When freelance photographer Mannie Garcia photographed Barack Obama at the National Press Club in April 2006, he couldn’t have guessed that Obama would be elected president two and a half years later. He also had no way to know that his photograph for the Associated Press would become the most widely circulated image of the new president and a subject of a lawsuit involving copyright infringement and fair use.

The photo was transformed by artist and graphic designer Shepard Fairey into a series of idealized, colorized portraits of Obama distributed primarily on posters accompanied by slogans such as “Hope” or “Progress.” Eventually Obama’s election committee officially adopted the Fairey posters, and it became so emblematic of his campaign that it was transformed into street lamp banners in Chicago. A collage based on the poster was acquired by the National Portrait Gallery in Washington D.C.

The case will be a litigious feast for intellectual property lawyers. Garcia claims that under his contract with AP, he owns the photo. Although he condemns Internet theft of property, which is the uncharitable description of Fairey’s actions, the photographer seems proud of the role his picture played in defining Obama’s vision. The AP contends that it owns Garcia’s photo and threatened legal action against Fairey. Launching a preemptive strike, Fairey brought suit in federal court last month against AP, asking for protection under the fair use clause of the Copyright Act.

Fair use is a limit imposed by federal statute on the absolute ownership of material protected by copyright. It allows reproduction of a particular work without payment to the owner under certain circumstances, including criticism, commentary, news reporting, teaching, scholarship and even parody. The amount and substantiality of the portion used can be a factor under the law, leading many legal scholars to hold that Fairey’s reworking of the original photograph makes it a unique work of art and not subject to prosecution for copyright violation. But interpretation is often nine-tenths of the law.

Fairey, 39, graduated from the Rhode Island School of Design (1992), where he learned the process of screen-printing which enabled him to express his interest in the street subculture of skateboarding and hip hop music. Influenced by 20th century German philosopher Martin Heidegger, he was attracted to the concept of phenomenology, a heady subject debating reality, being and existence. Drawing on this notion, he created a slogan based on the late French wrestler Andre Roussimoff, a popular figure in the street hip hop culture. Emulating the viral spread of the World War II-era slogan “Kilroy Was Here,” “Andre the Giant Has a Posse” was painted alongside an image of the 7-foot 4-inch wrestler and made into paper and vinyl stickers which were distributed throughout Providence, R.I., as a street art campaign. The meaningless slogan was Fairey’s experiment with phenomenology. It worked as a phenomenon. By the mid-1990s the stickers spread quickly and were found posted throughout much the world.

Fairey altered the slogan in 1998, keeping the image but changing the text to read “Obey,” an idea from a 1988 cult film, They Live, in which “Obey” signage appears throughout the film. Immersed in popular culture, Fairey has designed CD covers, T-shirts and sticker silkscreens and an Obey clothing line featuring pop culture slogans and images.

Fine art does not inspire Fairey, who favors simple graphic design. Iconic images of cult heroes and presidents elect have become his trademark. Borrowing heavily from 20th century propaganda poster campaigns, his images resemble Soviet and Mao era designs, the bold geometric pattern of 1920s Constructivism similar to Russian painter Alexander Rodchenko, a decorative 1960s style hinting at the Jimi Hendrix experience concert posters as well as overtones to the stylized Vietnam War Communist message posters.

His earlier images didn’t seem to promote any particular message; instead they reminded viewers of the power of propaganda and perhaps its dangerous consequences. Taking photographic images modified with silkscreen application, he produced MTV-stylized rap and hip hop posters. A poster resembling a WPA era woodcut of the American prairie attempts a message without text by depicting a windmill and a burning oil drill.

A glamourous young girl replete with heavy red lips, displaying a symbolic armband and wearing a military-style cap with a red star, holds a machine gun with a flower mounted in its barrel suggesting the Bond girl image of the 1960s.

A series of four bold screenprints, “Hope For Darfur” features children dressed in various garb, some in native cloth, one dressed in an old fashioned American baseball uniform and another wearing a t-shirt straight out of Charlie Brown with the signature zigzag emblazoned across the front. All of the children stare directly at the viewer, which immediately draws you in and holds you there. The message “Hope For Darfur” is designed differently on each poster.

The Obama posters are a brilliant fete of direct message. He kept it simple and made it loud. With a superlatively simple graphic design of a flat and near featureless image of the future President, the face becomes monumental, like a sculpture on the side of a mountain. Fairey chose one word per poster, such as “CHANGE” or “PROGRESS,” and in simple Helvetica typography ran it across the bottom of the design. It is balanced and the choice of primary colors, blue and red, suggest a party equality. The poster is not complicated. The message is clear. You don’t have to think hard to get it. It is a powerful piece and the artist is in complete control of his craft.

Auction results for Fairey’s prints escalated from September through December 2008 with sales in Los Angeles, New York, London and Paris averaging $2,500-$4,000 hammer price per poster. The “CHANGE” screenprint hit the hammer at Phillips de Pury (New York) in October for $5,500.

His works are exhibited world-wide with inclusion in the permanent collections of the Smithsonian, the Museum of Modern Art and the Victoria and Albert Museum. The Institute of Contemporary Art in Boston is currently exhibiting “Shepard Fairey: Supply & Demand” (through Aug. 16, 2009) and calls him one of today’s best known and most influential street artists. Would Martin Heidegger marvel were he around today at the phenomenal success of an artist influenced by phenomenology?

Mary Manion is acting director of Landmarks Gallery and Restoration Studio in Milwaukee, and director of its framing department. For more information, visit www.landmarksgallery.com or call 414-453-1620.

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Obama campaign image is subject of lawsuit involving "fair use" law.

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