Class Assignment 4 – What is Fair to Use?

Link to the guy in question:

Basically, Shepard Fairey is the guy who made the hope posters for Obama. He has faced some legal issues in regards to just how he made the posters. The posters were based on a photo taken by someone else that he then modified into the poster, and didn’t end up giving credit or compensation to the guy who took the picture.

So what do I think this issue is about? In my most humble, and TOTALLY correct opinion, I think it is an issue with when is something considered fair use, (hence the title, which I actually decided one before I even figured out what I thought the main issue was) and maybe in addition, when a piece of art is transformative (enough changes had been made) enough to be considered “not copying”.

In this situation, was the work transformative enough? Considering when Fairey went to court on this issue, he actually lied about what picture he ended up using as a basis for the hope posters, and when they found out what he had actually used as his base, they said the hope posters looked a lot more similar. Now, having not seen the original photo, I can’t tell how similar they were, but, based of the fact that the guy actually lied about what picture he used leads me to believe THAT NOT EVEN HE HAD THOUGHT HE HAD DONE ENOUGH TO MAKE A TRANSFORMATIVE PIECE (fun fact: spell check doesn’t consider transformative a word…).

So that pretty much leaves it to a matter of being fair use or not. In my opinion, photos, unlike stuff like paintings and drawings, are not immediately off limits for fair use. I imagine it kind of like this: You take a picture of a wall. A friend of yours takes a picture of the exact same wall and by sheer freakish coincidence, manages to take it at the exact same angle and lighting conditions that they end up with the same picture as yours. Basically, to me, photos are a much easier thing to reproduce than other art forms, that and the fact that there isn’t as much originality to them in the first place. All photos are of objects that are already out there in the world, and two separate people can spontaneous generate the same idea independent of one another and decide to take a picture of the same subject and in the end they would end up with similar photos, where as to separate sketch artists did a similar thing, their pictures would be WAY DIFFERENT (for this little thought experiment anyways. Some people do have very similar art styles…).

So what does all that rambling add up to? There’s a grey area, simple as that. Without knowing just how little effort he put into his poster, I can’t make a more informed decision. I’m going to give him the benefit of the doubt and say he probably did enough, though at the very least he could’ve given the photographer credit if he was willing to admit he used a photo as a base in the first place.

There are my thoughts on the issue, and with that all out of the way, can I just point out how hilariously ironic I find that the guy’s last name is “Fair”ey and he ends up in a legal debacle over “fair” use? What’s that…? You’re saying that’s not actually irony right there? WELL WHO ASKED YOU THEN!? THIS IS MY BLOG AND I’M GONNA SAY IT’S IRONIC! 😡


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