Why'd You Lie?In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in copyright laws, I wanted to notify you of a recent development in my case against The Associated Press (AP). On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia, through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image. The AP claimed it was one photo, and I claimed it was another. The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment (MORON) and I take full responsibility for my actions (TOO LATE) which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner. I am very sorry to have hurt and disappointed colleagues, friends, and family who have supported me in this difficult case and trying time in my life. I am also sorry because my actions may distract from what should be the real focus of my case – the right to fair use so that all artists can create freely. Regardless of which of the two images was used, the fair use issue should be the same.I’m sure a lot of people are wondering about my case with the AP over the Obama HOPE poster. I can’t talk about every aspect of the case, but there are a few things I want to discuss and points I’d like to make. Most importantly, I am fighting the AP to protect the rights of all artists, especially those with a desire to make art with social commentary. This is about artistic freedom and basic rights of free expression, which need to be available to all, whether they have money and lawyers or not. I created the Obama image as a grassroots tool solely to help Obama get elected president. The image worked due to many complex variables. If I could do it all over again, I would not change anything about the process, because that could change the outcome. I am glad to endure legal headaches if that is the trade-off for Obama being president. No disrespect was intended to photographer Mannie Garcia, but I did not think (and do not think) I needed permission to make an art piece using a reference photo. From the beginning, I openly acknowledged that my illustration of Obama was based on a reference photograph. But the photograph is just a starting point. The illustration transforms it aesthetically in its stylization and idealization, and the poster has an altogether different purpose than the photograph does. The AP photo I used as a reference, which I found out much later was taken by Mannie Garcia, (which was actually this one, not the one being circulated in the press) was a news photo that showed George Clooney and Barack Obama attending a 2006 panel on the genocide in Darfur. My Obama poster variations of “HOPE” and “PROGRESS” were obviously not intended to report the news. I created them to generate support for Obama; the point was to capture and synthesize the qualities that made him a leader. The point of the poster is to convince and inspire. It’s a political statement. My Obama poster does not compete with the intent of, or the market for the reference photo. In fact, the argument has been made that the reference photo would have faded into obscurity if it were not for my poster which became so culturally pervasive. The Garcia photo is now more famous and valuable than it ever would have been prior to the creation of my poster. With this factor in mind, it is not surprising, that a gallery in NYC is now selling the Garcia photo for $1,200 each. As I understand it, Garcia himself did not even realize the poster was created referencing his photo until it was pointed out to him a full year after the poster came into existence. Mannie Garcia has stated in the press that he is an Obama supporter pleased with the poster result. I did not create the Obama poster for financial gain. The poster was created to promote Obama for president, and the revenue from poster sales was re-invested in more posters, flyers, stickers, etc.., and donated to charity, including the Obama campaign. A free download of the Obama image was available on my website, which should provide further evidence of the desire to disseminate the image, not to benefit financially. Lastly, I m very saddened to see many people try to demean my Obama poster as being “stolen” or that because I used a photo I “cheated”. As far as the idea of the image being “stolen”, I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled. A writer asked me why I “didn’t just draw Obama from my imagination”. My response was that I needed to make my image look like Obama, who is not an imaginary character. I know few people who could capture a convincing likeness of close friends or even their own family members from their imagination or memory. I use my own family members as models, taking my own photos of them to illustrate from - VIVI LA REVOLUCION and COMMANDA. Were Obama a member of my family I would have employed this technique. Another suggestion someone made was “why not splice two or three photos together and illustrate from that?” Well, though a direct match would have been harder to find, with an image as popular as the HOPE poster, internet sleuths would probably have found the references and maybe I’d be facing two or three lawsuits. This leads to the next question: is illustrating from a photograph 'cheating'? I studied art, illustration specifically, at one of the most prestigious art schools, The Rhode Island School of Design. At RISD I was taught to draw from life, to draw from photo references, and to appropriate and re-contextualize imagery. All of these techniques had historical precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos. I have respect for, and have frequently collaborated with, photographers, but I do not think permission, or a collaboration is warranted in every case where an artist works from a photo reference. I collaborate with photographers because I WANT to, not because I believe I HAVE to. Usually, when I work directly with a photographer as a collaboration, I do so because I am building upon, rather than transforming their original intent. Of course, as with everything, the definition of transformation and fair use is somewhat subjective. I’m an artist, not a lawyer, so I’d prefer to see more latitude for creativity even though I do respect intellectual property. This case has raised many issues, including the use of references in art. Some of my earlier works have been attacked by some as “plagiarism”. I think reference is an important part of communication and it has been common practice in the art world. When I flipped through the Christie’s auction house catalog from November 2008 I found many pieces that are based on reference or appropriation. Most are selling for over $100,000. Some are more clever than others, but these are all works that are at auction being taken very seriously. Take a look. If the AP wins their case, every Obama art (or any other politician) that was based on a photo reference that was not licensed would be rendered illegal. Here are just a few that were an important part of the political discourse during this election cycle. I also think art that is critical of leaders that neither the subject or the photographer approve of need to be a legal form of expression. I think this Bush image is a perfect example. Thanks for reading.
-Shepard Fairey
See You In Court Shep
Tuesday, October 20, 2009 
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