And does so pretty well, I think. As I've written before, I'm more than a little sympathetic to Fairey's side on this, so I'm likely to find his arguments appealing, but I'm going to expand on them just a bit. Fairey says this:
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 made that bolded argument in my last post on this subject, and I stand by it. But I want to expand on it a bit, based on some reading I've been doing for a class I'm teaching right now.
Kwame Appiah, in his book Cosmopolitanism, talks about cultural patrimony and how when it extends into the realm of intellectual property, it increases the danger of a culture becoming even more obscure, and potentially, even extinct.
But the movement to confer the gleaming, new protections of intellectual property on such traditional practices would damage, irreparably, the nature of what it seeks to protect. For protection, here, involves partition, making countless mine-and-thine distinctions. And given the inevitably mongrel, hybrid nature of living cultures, it's doubtful that such an attempt could go very far. Not that we should be eager to embark on it. For one thing, we've been poorly served by intellectual-property law when it comes to contemporary culture: software, stories, songs. All too often, laws have focused tightly on the interests of owners, often corporate owners, while the interests of consumers--of audiences, readers, viewers and listeners--drop from sight.Artists like Shepard Fairey--indeed, pretty much any artist, I'd argue, because if one defines intellectual property rigidly, one could argue that being heavily influenced by previous artists constitutes encroachment on their IP rights--fit into the consumer category Appiah discusses above. And indeed, the AP isn't so much trying to protect what it perceives as its IP as its trying to open up a revenue stream that hasn't existed beforehand.
But lets say that the AP succeeds in its claim. What are the likely outcomes? Some artists will plow on as before and dare the AP to try to make their claims stick. Others will look elsewhere for raw materials to fashion into their art. But if the AP thinks that they'll get artists--or bloggers, to extend the argument a bit--to fork over money for the "privilege" to transform, and in a way, advertise the AP's product, they're dreaming. The AP already learned that lesson when they tried to charge bloggers for excerpting their news stories--no one paid, and a number of people refused to link to them as a result. Most bloggers, however, just laughed and kept on doing what they were doing.
My point is that the AP, even if they win this case, doesn't win in the long run. The best they can hope for is that artists simply ignore the ruling, in which case the ruling doesn't mean anything. Worst case? The AP is ignored completely, boycotted, if you will, and cut out of the cultural conversation. That's highly unlikely, I think--artists are far more likely to take their revenge by smacking the AP around than by ignoring them, it seems to me.