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Making a Mockery of Fair Use and Creative Freedom: Artist Shepard Fairey pleads guilty to criminal contempt over fake evidence

by Brian Sherwin on 2/25/2012 9:02:56 AM

This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Conservative Punk, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog, COMPANY and Art Fag City. If you want your blog posts listed in the FineArtViews newsletter with the possibility of being republished to our 17,000+ subscribers, consider blogging with FASO Artist Websites.  Disclaimer: This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.. You should submit an article and share your views as a guest author by clicking here.

Artist Shepard Fairey has plead guilty to criminal contempt due to using fake evidence in his 2009 lawsuit against the Associated Press (AP). Shepard Fairey has long been considered one of the strongest advocates for wide interpretations of 'fair use'. I can recall dozens of art writers who supported Fairey when his iconic Obama 'HOPE' poster came under fire over allegations of copyright infringement involving an AP owned image of Obama. At the time -- supporters of Fairey 'painted' the AP as being a controlling corporate entity... and championed Fairey as a symbol of creative freedom. It will be interesting to see if those same writers take back some of their support now that Fairey has acknowledged his wrongdoing in court.


Shepard Fairey's deceptive actions have made a mockery of 'fair use' and creative freedom. After all, Fairey waved the banner of creative freedom throughout his legal problems with the Associated Press. He rallied support from within the art world -- as well as from Free Culture advocates. In fact, at one point Fairey claimed that he was 'fighting' the AP for the rights of all artists -- all while attempting to 'stack the deck' in his favor... which, in my opinion, goes against the concept of law and the rights of all. It forces one to wonder just what kind of system Shepard Fairey truly supports beyond the message of his artwork.


One could suggest that Shepard Fairey 'stabbed' his supporters in the back while at the same time 'eviscerating' his own principles. After all, his deception was not an issue of innocent flubbing -- it was a calculated 'assault' on our legal system... and not one spurred by the spirit of rebellion -- no, this 'attack' was orchestrated merely to secure his profit. Fairey may have got away with it had it not been for one of his employees discovering the files that he thought had been deleted.


In addition to the above, I find it ironic that an artist who calls for more transparency within big business and politics would stoop so low as to try and deceive the court of law, the public and his own supporters. True, we -- the public -- may not be able to trust some of the corporations, politicians and other societal influences that Shepard Fairey has 'called out' with his artwork... but apparently we can't trust him either. How is Fairey any different than the corrupted Wall Street tycoon or the politician who has something to hide? Food for thought.


Fairey attempted to destroy evidence linking his Obama poster to the AP owned image of Obama, he created false documentation pointing to another source image -- and even went as far as to arrange for a witness to support his false claims. He did all of this while presenting himself legitimately among peers and supporters. In a sense, one could suggest that Fairey has become the type of individual his artwork often speaks out against. Thus, his deception takes away from the message of his artwork.


Shepard Fairey has stressed that he is ashamed for what he has done -- and that the burden -- prior to being exposed by one of his employees -- was difficult. It is hard to tell if his acknowledgment of wrongdoing is sincere after all of his deceptive behavior. After all, he lied to his attorney, to the judge, to his employees, to his supporters, to his peers and apparently lied to his wife about the situation as well. We -- the public -- have criticized CEOs and politicians for less. Again, it will be interesting to see how his supporters -- specifically those within the art blogosphere -- will approach his deception.


In closing, Shepard Fairey may end up serving six months in prison for said deception -- which hopefully will be enough time for him to get his life back on track. As for his artwork -- all I can say is that it is difficult to take art that calls out liars and frauds seriously when the man behind the 'visual message' happens to be just as deceptive. He has made a mockery of 'fair use' and creative freedom. Shepard Fairey has damaged his legacy -- there is no denying that. That is something he will have to live with (and something other artists should learn from).


Take care, Stay true,


Brian Sherwin


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Topics: art criticism | art law | Brian Sherwin | copyright | FineArtViews | Think Tank 

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Just read that his lawyer said that Shep "Cooperated fully" with the investigation and took "Full responsibility" for his actions. Ummmmmmmmmmmmm his employee exposed him. If he was really cooperative and responsibility he would not have sued the AP over fair use using bogus evidence. People always reference him to support fair use. Bet that don't happen much after this.

And read the following in the Times.

"Tom Curley, the president and chief executive of The A.P., issued a statement noting that Mr. Fairey had started the case with his lawsuit over copyright fair use issues, and added, "The A.P. hopes that some good may come of this, by alerting judges and parties to the possibility that fake evidence may exist."".

No wonder Anthony Falzone dropped from the case in 2009.

Susan Roux
I have been nicknamed the art police for exposing artists who steal the works of others, only to sell it as their own. It turns out, I have zero tolerance for this type of behavior. After all we call ourselves artists. The very nature of an artist is to create, not pirate.

I posted about a fellow blogging artist who was doing just that. Here is the link to that post. The comments are a testament to how artists really feel about this ongoing situation.

Thank you for posting this information. Artists have a much larger voice than ever before with the help of the internet. If we speak loud enough as one, perhaps we can get this type of copying to stop.

jack white



Brian Sherwin
Susan -- I just read your article. WOW. I'm surprised she admitted to it.

Jack -- Thank you sir.

Brian Sherwin
Chaz -- Hopefully Tom Curley is right. It is something that must be considered in court when dealing with alleged infringement.

Kay Hale
This has been an age old problem..hasn't it? Since the gets worse, yet it also affords us the ability to catch the thieves in the act so to speak, as Susan found out on her blog. I hate to say it, but once a liar, always a liar. The energy expended by these fraudsters to "put one over" the public could have been spent doing original art..obviously they have some talent. But I guess their talent to deceive drives them more than the desire to do real and original art. Funny how they are so repentant after being caught. More sad about being caught in their lies than doing wrong.

Donald Fox
Thanks for keeping us informed on this and related topics. I'm not sure that Fairey made a mockery of Fair Use. He certainly tried to exploit that in his defense. I'd say he made a mockery of himself as being an upstanding artist.

Marian Fortunati
I totally agree with Donald!!!

What a shame it is when some of us get so self important that we fail to see the warts on our own noses.

Honesty and integrity really aren't or shouldn't be things of the past.

Hello Brian:

There is an old saying power corrupts money is power in some peoples eyes. True artists always endeavour to see the truth in life, others see the truth make a lie out of it and pass it off as creative art. The only thing creative about it is their marketing skills.

Diane Olsen
As I read what you wrote, I thought that this man simply shows once again that what artists choose to create is a reflection of themselves in some way. We find we honor our personal truth, and that we also can not escape it, whatever it is - our art will tell our story.

Brian Sherwin
Donald -- I'd suggest that he made a mockery of fair use in that he approached several fair use advocates within the Free Culture movement as part of his defense and to spread the word about his innocence... thus making those individuals look like swindlers as well. Not to mention that many writers use Fairey as an example of what can be achieved in art with a wide interpretation of fair use. Point blank, he let a lot of people down.

Susan, I can only echo what Brian said - WOW! I am considering embarking on a similar thing myself...

Last week Andy had a meeting with the publisher of a local magazine. They are interested in using one of his images on the cover in coming months. While he was there, he was given a copy of the current issue and brought it home.

As I turned the pages, I saw an ad for our local area. At the top of the ad were three photographs - all of them taken by Andy.

They have been lifted from the internet.

We have found out from the magazine who paid for and placed the ad. We haven't contacted them yet. (They are the richest, most powerful company in the area - naturally!) We haven't been able to find out which ad agency stole our images.

Andy is a lot nicer than I am. I want to go to war. The internet seems to be my best weapon. Any comments or advice, please?

Brian Sherwin
Jackie -- They will most likely want to avoid bad PR... which will come if they don't work toward a solution that acknowledges Andy. Heck, you may think about using it as a bartering chip... does this company happen to have a corporate art collection? ;p

Hi Brian,

That's an interesting point ...

"Hello, because you seem to love our artwork so much, perhaps you'd be interested in ..... this would enable you to use the artwork you purchased in future ads...."

Brilliant Brian, brilliant!

Brian Sherwin
Jackie -- It can happen... unless the company is boneheaded. I've known of situations like this that result in a good working relationship between the company and artist. Often times -- and I know it can be hard to swallow -- companies don't realize that they are infringing... so once they understand... they may be willing to work out some form of agreement that benefits Andy rather than face a backlash.

You know Brian, you might well be right. A third party has informed the company about the situation.

Just half an hour ago Andy had a friendly email from one of the top people there apologizing, telling us the name of the freelance designer who did the actual stealing AND suggesting that there could be a compromise to reimburse Andy.

I rather imagine that the third party made it quite clear to them that "Jackie is a b**** and is unlikely to let this go"!

What's more, I can now get in touch with the designer who is the ex-husband of a good friend of mine.

Karma :)


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