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This is Fresh Air. I'm Terry Gross. Remember the iconic poster of Obama with the word "Hope" at the bottom that was everywhere during the campaign and is now on exhibit at the National Portrait Gallery? Well, it's now at the center of a lawsuit about whether the artist, Shepard Fairey, had the right to use a photograph of Obama and alter it for his poster without crediting the source of the photo or paying a fee for its use. The outcome will not only affect artists and photographers, it could affect all of us amateurs who use the Internet to distribute or download photographs, music and other artistic content.

Today we're going to hear from Shepard Fairey, Mannie Garcia, the photographer who took the Obama photo that Fairey used, and Greg Lastowka, a law professor specializing in intellectual property. Before we hear the interview I recorded yesterday with Fairey, let's go back to the one I recorded in January with him in which Fairey described how he developed his method of taking existing images, transforming them and using them for his street art. The first image he became famous for was of the wrestler Andre the Giant. A retrospective of Fairey's work is currently on exhibit at the Institute of Contemporary Art in Boston.

(Soundbite of recorded interview)

Shepard Fairey, welcome back to Fresh Air. Let's kind of start at the beginning of the work that you became known for, and this goes back to what - about 1989 when you started doing the Andre the Giant posters. And if you could just describe the first poster that you did in the series and tell us the inspiration behind it.

Mr. SHEPART FAIREY (Contemporary Artist & Graphic Designer): Oh, it's - the original Andre the Giant has a posse sticker. I wish that there was a profound inspiration to it. Really, all it was was I was working at a skate shop in Providence, Rhode Island, going to the Rhode Island School of Design, and making a lot of my own T-shirts and stickers. And a friend wanted to learn how to make a stencil, so I looked through the newspaper to find an image for him to cut out and saw an ad for wrestling. I said, why don't you cut this Andre the Giant image out? And he said, no way, I'm not doing that. And I said, what are you talking about? Andre the Giant is awesome, which I was very much joking about.

But what I realized was Andre's very distinctive looking, and I was fascinated by him, and I wanted to make a stencil for my friend to teach him, so I made the stencil. Then we made some stickers and put them on some stop signs and on our skateboards, and the next thing you know, people were asking about it around Providence, and the local news - free newspapers had a contest asking people if they knew what the Andre the Giant sticker was about.

And it made me realize that images in public that aren't advertising make people curious, and I started to do some research and think about the control of public space and the motives of most images in public space. And that image quickly evolved into a series of images that were more sociological, that were more about getting people to question advertising propaganda and obedience, and you know...

GROSS: Yeah, talk about some of the slogans that you'd have on the bottom of the posters.

Mr. FAIREY: Starting with the original Andre the Giant sticker, I realized, well, I have this image that has an audience, but it doesn't serve what I want to achieve philosophically, which is to get people to question Big Brother, and you know, question everything that they're asked to do. So I simplified the Andre face into what I call the icon face, which is like a counter-culture, Big Brother is watching you, and I put just the word "obey" beneath it. And I felt that obey was very provocative because a lot of people don't like to be told what to do, yet they follow the path of least resistance. But when they have to confront the word, obey, they're actually very resistant to that.

So you know, I would use phrases like, you are under surveillance. I would have a riot cop with a baton that says, I'm going to kick your ass and get away with it, with the Andre image down in the corner. And I started to create a body of work that all had the icon face as a signature but wasn't necessarily the main image. But the icon face was very, very bold and confrontational.

GROSS: Now, you did the Andre the Giant series and other series of yours in every size - stickers, really large posters on the sides of buildings. What are some of the most unusual places you've managed to get to to put your work?

(Soundbite of laughter)

Mr. FAIREY: Well, I've traveled all over the world putting posters up and stickers and stencils. I've climbed to the top of water towers in Detroit, and I've, you know, gone down to Bells Beach in Australia and actually stumbled upon one of my stickers already on a sign there. It's amazing how much smaller the world feels when there's an image out there that, you know, that travels virally. But, you know, there's so many different places I've put them. I've been pretty diligent about it.

GROSS: Some of the places that you've put them, like on a water tower, aren't legal, and you've been arrested how many times?

Mr. FAIREY: I've been arrested 14 times.

GROSS: So do you think that people who do find it intrusive to have street art on the side of their building or on public property, like, you know, stop signs or things like that, do you think that they have a point?

Mr. FAIREY: Everything has two sides of the story and has gray areas. So I do think that graffiti street art is not appropriate everywhere, and I feel that my approach is to try to find the most appropriate places where the art can be integrated. I can communicate with people. I'm a taxpayer. Theoretically, I own a little bit of the public space myself, and I can put stuff out there that creates the least inconvenience for others. I'll only put my work on buildings that are boarded up or dilapidated or already have other graffiti on them. But there's always someone who's going to have their feathers ruffled by pretty much anything, street art or otherwise. You can't please everyone. I do the best I can to be a responsible person and still communicate without any red tape.

GROSS: Now, when you were a teenager, I know you love T-shirts and you put a lot of stickers on your skateboard, and you're probably into album jacket covers. Can you talk about some of the images that meant the most to you then and why they were so important to you?

Mr. FAIREY: When I was growing up, I always drew, but I was never into art, you know, art in museums or I didn't even know most artists by name. The thing that actually got me really excited about art was skateboard graphics and punk album covers. I really loved what Jamie Reid did for the Sex Pistols, the God Save the Queen graphic and the Pretty Vacant graphic. And these were appropriated images that he had reconfigured with these ransom-note letters, and you know, it was bold and irreverent and it made a huge impact on me. I also liked Winston Smith's graphics for the Dead Kennedys. I liked Raymond Pettibon's album covers for Black Flag. These graphics made a real impact on me.

But then also, Barbara Kruger's graphics and Robbie Canal, the poster artist who did the Reagan contradiction, and you know, more recently did climate change with Obama and has a huge history. They made an impact on me, too. So I think it was the skateboarding and the T-shirts and the punk rock covers fused with some artists who did really bold, political graphics.

GROSS: Yeah, and Barbara Kruger's work is - a lot of it is just language, like a slightly inscrutable slogan put in a public place, kind of similar to what you're doing.

Mr. FAIREY: Yes, and she was definitely an inspiration for me.

GROSS: So you've referred to your work and everybody refers to your work as being viral, that you do these stickers or posters, and they catch on, and they just kind of get their own life, and they just kind of spread by other people. How does a street art image become viral?

Mr. FAIREY: Well, you first of all have to create the materials and allow them to be disseminated. Before the Internet, I made Xerox-proof sheets of a lot of my images, and like a chain letter, I would mail them to people and say, if you like what I'm doing, here's your own master copy, go run off some copies. And I also would sell very inexpensively or give away stickers. You know, it helps things going viral if they're free or cheap, that's for sure.

But now with the Internet, I have free downloads of some of my images, and I think that there are two components that are extremely important. There's, you know, accessibility and then desirability. You know, if people like the concept of what I'm doing and also visually it's compelling enough to them to want to spread it, then they also have to be able to easily access it. And so, you know, the Internet really helps that.

GROSS: Now, you've done work that started off as stickers and street posters and stuff. And now you did the Obama posters, you did the official inauguration poster. You have a campaign for Saks Fifth Avenue. You've done ads for all kinds of things, and you're about to have a show in early February opening at the Institute of Contemporary Art in Boston. So since you've designed work to be outside on the street and that work is moving inside into your first museum show, how do you feel about all that work being inside?

Mr. FAIREY: Well, I've been doing gallery shows inside for years, and that's just a controlled environment to present the work. But I think it's extremely important for the work, whether it's in a gallery or a museum, to reflect the spirit of what I do on the street. So I create the work using the same methods - the screen printings, stenciling, collage - that I use for the street work, and hopefully, the feeling that's conveyed when you see it on the street is also conveyed in the museum.

But just to make sure, I also coordinated with the Boston Institute of Contemporary Art to have a lot of outdoor locations secured so that people in Boston that don't even know about the museum show are going to see the work on the street, and that people that do know about the museum show can see both. And that's very important to me.

GROSS: You're doing a campaign for Saks Fifth Avenue, so your images are going to be on shopping bags and in the store and ads and stuff, and you've done a lot of advertising, visuals too. So it seems like you have one foot in the anti-authority world and in the street art world, and another foot in heavy consumerism. Does that feel like a contradiction to you?

Mr. FAIREY: You know, I could see how my commercial work could look like a contradiction. However, I've never said that I was against capitalism. What I've said is that people need to consume with more discretion. And I do commercial work for people that I respect and that I don't have an ethical conflict with. I turn away work from some cigarette companies and makers of large gas-guzzling vehicles. But I'll do work for people that I think are raising the bar aesthetically through commercial means because I think that there are no - there are no patrons for the arts now. It's only corporations. And if advertising is going to be out there, why not make it good?

And I also employ a Robin Hood approach, if you will. I take the money that I make from the commercial jobs and then I support our gallery that we run in Los Angeles, supplemental projects and various other creative endeavors - charity projects, pro bono work that I wouldn't be able to do without that income. So, it's just a balance that I try to maintain.

GROSS: Shepard Fairey recorded in January. Coming up, the interview I recorded with him yesterday about the lawsuit pertaining to his famous Obama "Hope" poster. This is Fresh Air.

(Soundbite of music)

GROSS: Shepard Fairey's most famous work is the Obama poster with the word "Hope" at the bottom that was everywhere during the campaign. Who took the original photo of Obama that Fairey used? As recently as last month, Fairey said he didn't know. All he knew is that it was an Associated Press photo. But others did want to know the photographer's identity, and eventually, another photojournalist solved the mystery, discovering that the photographer was Mannie Garcia working on assignment for the Associated Press.

After this revelation, the Associated Press asked Fairey for payment for use of the photo and a portion of any money he makes from it. Fairey filed a preemptive lawsuit saying that under the Fair Use section of the copyright Law, he had the right to use and transform Garcia's photo. We'll hear from Garcia in a few minutes. First, let's hear the interview I recorded with Fairey yesterday.

(Soundbite of recorded interview)

GROSS: How did you choose the photo that was the basis of your image in the Obama poster? And what made it stand out from all the others?

Mr. FAIREY: Well, I looked through a lot of photographs, but I had an initial concept that I'd like to divide Obama's face in highlighting shadow between tones of blue and red. So, it was really the direction of the gaze which I felt looked presidential, looked like Obama had some vision and some leadership, and that combined with the way that the light was falling. When I illustrated the image, I had to push the definition of the shadows to really make it fall in line with the way I wanted it to ultimately look, but the Mannie Garcia photo was a great point of departure for the illustration.

GROSS: So would you describe what the original photo looked like, the photo that you appropriated for your poster?

Mr. FAIREY: Well, unlike the photo that's been circulating in the media, the photo that I used of Mannie's was actually the one where Obama and George Clooney are both in the frame, but it was shot probably a second before or after the one that's been circulating. But what struck me about the photo wasn't the context of Darfur panel in 2006. It was the way that Obama was looking the angle. There are a lot of different historic photos of people like John F. Kennedy, the famous Korda Che Guevara photo that have this feeling of the subject knowing what lies in the future, having some sort of wisdom, and it's a specific angle of the gaze, and that was really what struck me about the photo.

GROSS: Now, some people are contesting whether that's the actual photo that you used. I don't know if you're following this or not, but there's a blog by James Danziger, who is the person who put out the alert - let's find the photo that, you know, inspired this poster. He says that when you overlay the photo with George Clooney of Obama with your poster, they're a little out of sync, whereas when you overlay that single shot of Obama with your poster, they're perfectly in sync. So do you want to address that? Because they're saying that you're claiming it's a different photo than it is.

Mr. FAIRLEY: Well, that's where the part of being an artist comes in, doesn't it? It's that liberties had to be taken with the photo to get what I wanted. The one thing that I had to adjust was whether Obama was going to be looking more to the right or more directly towards the viewer, so I had to adjust his eyes a little bit. That's the main thing that I recall adjusting. And I rotated his head really slightly. It's a hand-illustrated image that I also did some digital tweaks to before I started illustrating it. And so, yeah, that would probably explain that.

GROSS: I know some people are with you in the fact that you have the right to appropriate the image for your poster. But some of those people also wonder, why not attribute the photo? Why not find out who the photographer was and give him or her credit for it? In this case, it was Mannie Garcia.

Mr. FAIREY: Well, you know, I've attributed it to the AP all along, and I really - it may come across at this point that there was some sinister agenda to conceal the source of the photo, but that actually isn't the case. It's actually that I just wasn't diligent about figuring it out who it was, you know. I wish I could claim something more thought out, more real conceptual than that, but actually, that's just the truth of it. I didn't do the research, and I, you know, I didn't thinking that I needed to. You know, I'm perfectly willing to give Mannie Garcia the credit. I've acknowledged it, and you know, I think that he deserves the credit. I just didn't do the research.

GROSS: Now, a lot of people think that the Associated Press sued you because you used an AP photo for the Obama "Hope" poster. But it's actually you who've sued the Associated Press. Why did you decide to sue the AP?

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let's figure out how to work this out amicably, which I was vey open to and said, you know, I'm glad to pay the original license fee for the image. For all the reasons I've already given you, I didn't think that I needed to, but I'm glad to do it because, you know, I'd rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they're calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don't have the resources to license an image.

And the meaning of their art pieces is completely different than the original intention of the source image and adds a new layer, a new value. It's transformative, and I think it should be fair use. And I felt that I needed to fight the AP not for myself only, but for a whole group of artists that would be self-censored, probably, because they can't afford the photos and they don't want to be in a legal entanglement over using those types of images to communicate a message.

GROSS: You're claiming that under the fair use part of the copyright law that you have the right to take this photograph of Obama and transform it for your art without any kind of payment to the Associated Press or the photographer or even official acknowledgment. On what grounds are you claiming fair use?

Mr. FAIREY: I'm claiming fair use on the grounds that this is an image that has been transformed graphically, and it may be even more significantly transformed in its intent. The original image was intended to just document a Darfur panel in 2006 prior to Obama even announcing his candidacy, and the new image is designed to show Obama as a leader and a presidential candidate who would be pushing for progress change and a symbol of hope. These are completely different uses, and I think that it's fair use based on that intent, as well as the transformation graphically that really idealizes it in a way that is not there in the original.

GROSS: We'll hear more from Shepard Fairey and talk with the photojournalist whose photo Fairey used for his Obama poster in the second half of the show. I'm Terry Gross and this is Fresh Air.

(Soundbite of music)

GROSS: This is Fresh Air. I'm Terry Gross. We're talking the legal dispute over the iconic poster of Obama with the word "Hope" at the bottom that was everywhere during the campaign. The artist, Shepard Fairey, used a photo of Obama as the source material of his poster, but he didn't provide any attribution for the photo nor did he pay a fee for its use. When the Associated Press confirmed that the source material was a photo by Mannie Garcia taken while on assignment for the AP, the AP asked for payment. Fairey filed a preemptive lawsuit saying that under the fair use section of the copyright law, he had the right to use and transform the photo for his poster. Let's get back to our interview with Shepard Fairey.

(Soundbite of recorded interview)

GROSS: Since you probably couldn't have done the poster without a photograph to model it from, what kind of credit should the photographer get? I mean, because you transformed the photo, but there wouldn't be that transformative image without the photo, so how do you think that should figure into either, you know, acknowledgment or payments or anything?

Mr. FAIREY: Well, you know, it's a different question between the AP and the photographer, Mannie Garcia. I do think that Mannie Garcia should be credited, though I don't think legally Mannie Garcia necessarily should be able to claim a part of the revenue, which is a moot point in this case because the image wasn't created for revenue, but were it an art piece that were created for revenue, I think that a lot of artists are reasonable people and would probably like to share whatever revenue there was with the photographer if they're working from a photograph, and that's something that I think should probably be up to the artist because different artists are in different phases of their careers.

You know, I think that in the case of this Obama image, it's become something much larger than it was - I could have ever imagined that it was ever intended to be. And I'm a reasonable person that's absolutely willing to give attribution to the photo, and I'm not really in a position to be able to talk about where my mind is about other aspects of it because I'm in the middle of a lawsuit. But I think that the problem here is that the AP was attempting to bully an artist, and I think that's the most important component of this case for me. I respect Mannie Garcia as another artist, and he definitely deserves attribution.

GROSS: So how is it affecting your life and your art to now be at the middle of this copyright fair use lawsuit?

Mr. FAIREY: Well, it's not really a welcome distraction, but you know, I feel like this is an important case for me to fight, not just for myself but for a lot of other artists. I could have tried to settle with the AP, and it's not about money. You know, the worst case scenario of this - they get the image and they get the money - I can live with. I think there's an aspect of this poster that's now being honed in on that is less important than what the intent of the image was, which was to have Barack Obama be the president, which I think is the best thing for everyone in the United States, the best possible outcome. I have no regrets, but yeah, this is a distraction that's keeping me from making my art, you know, day to day. But I wouldn't go back and change anything because I couldn't be happier that Obama is president.

GROSS: Shepard Fairey, thank you so much for talking with us.

Mr. FAIREY: Yeah. Thank you, Terry.

GROSS: Shepard Fairey recorded yesterday. We contacted the Associated Press to see if they wanted to discuss the legal dispute. Paul Colford, their director of media relations sent us their official statement on the case which was written earlier this month. Here's an excerpt.

(Reading) The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey's failure to recognize the rights of photographers and their works. AP was in the middle of settlement discussions with Mr. Fairley's attorney last week in order to resolve this amicably and made it clear that a settlement would benefit the AP Emergency Relief Fund, a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts.

AP believes it is crucial to protect photographers who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP.

That's a statement from the Associated Press. Coming up, we hear from the photojournalist whose photo was used by Fairey, Mannie Garcia. This is Fresh Air.

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