As a freelance photographer covering Capital Hill and last year’s presidential campaigns, Mannie Garcia saw the chin-up image of Barack Obama in “Hope” posters daily—without realizing it was his photo that inspired it.

Garcia takes hundreds of photographs on assignments. This one was taken for the Associated Press at a conference on human rights.

Los Angeles-based street artist and graphic designer Shepard Fairey lifted the photo from the Internet and used it to create the poster that became a symbol of unity for the grassroots campaign behind the Obama election. As is typical of Fairey’s artwork, many posters were hung or stenciled in public places and otherwise given away, but some were sold.

After the source of the image was revealed, the AP sought a negotiation in which proceeds from the sale of the posters would benefit journalists who suffer losses due to natural disasters and conflicts. But Fairey and his company, Obey Giant Art, with the help of Stanford Law School’s Fair Use Project, sued the AP in an effort to disprove assertions of copyright infringement.

Fairey filed his suit just days after being arrested by Boston Police for allegedly tagging public property in the city during a visit in 2000. The arrest occurred while Fairey was preparing to unveil an exhibit at Boston’s Institute of Contemporary Art. While police may have been attempting to make an example out of an outlaw, it also had the effect of restoring the street cred of an artist who has begun to cross over from anti-establishment to mainstream.

Questioning the legality of the artwork, a vague and somewhat subjective process, raises more questions about contemporary art in general and its relationship to new media. In addition to the copyright issues, street artists also clash with authorities over the definition of public art. 

Further complicating the court case between the AP and Fairey is the possibility that Garcia actually owns the copyright to the original photo by contract. He was only temping for the news outlet.
Garcia said he would prefer for the three parties involved to talk out the issue, possibly setting a standard for how copyright disputes are handled. He likes Fairey’s work and didn’t want to go to court over it.

“If we put all the legal stuff aside and just talk about the photograph and the artwork, I’m very proud of the photograph. I’m very happy he used my photograph and transformed it into a piece of art that helped elect the first black man to President of the United States,” Garcia said in a recent phone interview.

He said he feels like he had a part in the historic election. “I’m not going to let anyone steal that away from me,” he added.

Unfortunately, Garcia said, the case could take years of litigation, and since it involves Obama’s image, he considers it a distraction to the new administration. 

Ashlyn Lembree, a professor at Franklin Pierce Law Center, has been following the case and even discussed it with her students. “Everyone’s going to be following because the poster is everywhere,” she said.

Fairey contends that his image is protected by the “fair use” exceptions to copyright laws. The provision allows the use of copyrighted work for criticism, commentary, news reporting, teaching or research.

Proving fair use involves understanding the purpose of using the copyrighted materials, Lembree said. Fairey’s intent seems to have been a political comment, which is protected by the First Amendment. Despite the optimism the poster emits, Garcia said the original photo wasn’t meant to convey anything other than the newsworthiness of the event.

There are four variables determining fair use, Lembree said. One is whether the use was commercial or non-profit. Since some of the posters were free and some of the ones sold went toward printing more, Fairey can claim he had nothing to gain financially. However, he did gain fame and notoriety.

Most of the questions could be answered favorably for Fairey. The original was factual, not artistic. It was cropped and transformed, and the posters didn’t negatively impact the value of the photograph. Overall, Lembree said, the fair use argument seems to favor Fairey, but the AP has yet to respond in writing to the case.

Lembree said it’s difficult to create a work that is totally original and it’s hard to define fair use. “The more cases and the more high profile they are, the more people will become aware of the fair use doctrine and its scope,” she said.

Christopher Volpe, a professor at Chester College of New England and a Salmon Falls Mill artist in Rollinsford, said he’s more interested in the questions raised about art than whether or not Fairey is right or wrong. “What is art is at the heart of this,” he said.

He isn’t sure if altering an existing work is art, but he said computers are shifting the definition of art. He said technology has developed faster than the dialogue about what defines art.

Fairey is the first American street artist to become a national celebrity, like Banksy in England. But Volpe sees many contradictions within Fairey’s art. He started with outsider art as an underground artist, but now is shown in a national gallery. He creates propaganda, a form of mass media, with a message that is typically critical of capitalism and mass culture. His message is anti-establishment, but he used dictatorship style posters to help elect the president.  

Volpe draws comparisons to Andy Warhol, whose work was on display in an exhibit called “Pop Politics” at the Currier Museum of Art in Manchester. Warhol famously reproduced the brand labels of soup cans and made iconic portraits of politicians. Fairey uses the same style of turning photos into solid shades of dark and light.

It isn’t form that is copyrighted, though, but content. “Where does the line between content and creation get drawn?” Volpe asks.

Local artist Matt Serven, represented by the ellO gallery in Portsmouth, has a similar technique to Fairey. He combines street art graffiti styles with graphic design using stencils and spray paint on found materials. Most of his work employs sarcasm, innuendo and black humor, but some is just free association and aesthetics.

The initial appeal to stencils was mass production, like the silkscreen printing he does, but in a more crude and cost effective way. This leads to easy experimentation with color and composition, making a remix of the same piece. Stencils also let him “vandalize” existing artworks by painting on top of them.

Serven lifts images from the Internet or publications and manipulates them by photo copy, hand-drawn projector enlargements, and programs like Photoshop where the images are broken down to the most highly contrasted colors. But he tends to use images from the public domain and manipulate them beyond recognition.

He said borrowed images give his work authenticity. He takes pieces of reality, filters them through his mind and life experiences, and makes them his own. “That is true especially of my work that deals with my pop culture upbringing,” he said. “The use of the images gives my creation a foundation of real culture history.”

He said sampling from past work is a natural progression. “It only makes sense that you would borrow from the past, take what’s best, what evokes a response in yourself from the past, what captivates you, and put your spin on it. I see it as a good thing, a kind of homage to what’s come before you,” Serven said.