A commenter tipped me off about an article concerning Shepard Fairey, copyright infringement, appropriation and Mark Vallen’s 2007 critique of Fairey’s art. The article, titled 'The Medium is the Message: Shepard Fairey and the Art of Appropriation', was posted on Supertouch by J O’Shea-- Jamie O'Shea for those who don't know. The article by O'Shea is critical of Vallen's criticism concerning Shepard Fairey.
Before I go any further I want to make it clear that I do not agree with every view that Mark Vallen has concerning Shepard Fairey-- or art for that matter. However, it makes since that Jamie O’Shea, the editor of Super Touch, would support Shepard Fairey considering that Shepard Fairey is listed as an author on SuperTouch. It should also be noted that Jamie O’Shea has followed Fairey’s career extensively-- and has also curated and co-curated art exhibits involving the artist.
One could say that Jamie O'Shea and Shepard Fairey are business associates. In other words, Jamie O’Shea has a vested interest in making sure that Shepard Fairey is seen in a positive light. Articles by J O’Shea concerning positive aspects of Fairey’s career can be found on several websites if you do a search of ‘O’Shea Fairey’ on Google. Apparently Jamie O’Shea, who served ten years as the editor-in-chief of Juxtapoz, is now a creative director serving as a corporate liaison in order to connect artists with corporate culture-- and collections. There is nothing wrong with that-- but again, I’m certain that Mr. O’Shea has a vested interest in Mr. Fairey.
Jamie O'Shea's critical view of Mark Vallen’s critique is not exactly balanced nor is it a surprise. In fact, his support for Fairey is similar to the support Yosi Sergant-- of Evolutionary Media Group-- has shown to the artist. It should be noted that Yosi Sergant also has a vested interest in the success of Shepard Fairey. Thus, it makes since that both O'Shea and Sergant have spoke out against criticism of Shepard Fairey.
Allow me to break down what was said in the blunt of Jamie O‘Shea‘s article titled 'The Medium is the Message: Shepard Fairey and the Art of Appropriation':
Jamie O’Shea started his criticism of Mark Vallen’s article-- titled Obey Plagiarist Shepard Fairey: A critique by artist Mark Vallen-- by stating, “As underground art phenomenon SHEPARD FAIREY’s first major museum retrospective prepares to open at the INSTITUTE OF CONTEMPORARY ART/BOSTON on February 6th, we feel the need to address some of the vicious and unfounded rumors surrounding the originality of Shepard’s artwork that have been floated online in recent years.”.
O’Shea goes on to say, “Though written by a variety of different detractors for a questionable array of reasons, the common thread binding them all—aside from a thinly masked veneer of obvious envy in most cases—is a nearly ubiquitous lack of understanding of the artist’s use of appropriated imagery in his work and the longstanding historical precedent for this mode of creative expression.”. Based on O'Shea's usage of words one can only assume that he is hoping to strengthen the idea that only "jealous" individiuals criticize Shepard Fairey or any successful artist for that matter-- words and phrases that Fairey himself has used in describing individuals who are critical of his art and practice.
In essence O'Shea's article is an attempt at damage control-- he is aware that people are starting to do research about the copyright allegations surrounding Shepard Fairey's career. It is obvious that O'Shea is nervous about what people may find online during their research. Needless to say, the article by Jamie O’Shea comes off as nothing more than damage control given the fact that so many individuals have been researching allegations of copyright infringement against Shepard Fairey due to his use of Mannie Garcia’s photograph of Obama. Fairey failed to acknowledge or compensate the photographer-- which has stirred a controversy surrounding the ethics of Shepard Fairey's artistic practice.
In the article O’Shea claims that a “widespread and baseless internet campaign to smear Shepard Fairey has been going on for some time now“. In other words, O’Shea suggests that mass criticism of Shepard Fairey is nothing more than a smear campaign against the artist. O’Shea suggests that the alleged smear campaign against Shepard Fairey is based on Mark Vallen’s article as a primary source-- as if there were no detractors of Shepard Fairey’s art and questions of copyright infringement surrounding his career before Vallen’s article was published online.
That suggestion is obviously not grounded in facts considering that art historian Lincoln Cushing had exposed Shepard Fairey for copyright infringement before Vallen‘s article was published-- it was not the first time that Fairey had been exposed for questionable or unethical practices concerning his art. Thus, in my opinion O’Shea’s words are spurred by his own paranoia-- O'Shea can see the castle that he, Fairey, and others have built crumbling if public opinion starts to question the ethics and allegations concerning Fairey’s art. Thus, the article-- based on the implications for O’Shea writing it in the first place (read his introduction)-- is a ploy designed to gain support for Shepard Fairey during a crucial time in his career.
Of Mark Vallen’s article Jamie O’Shea stated, “If this writing were simply a balanced, albeit negative critique, or even an educated “gotcha” piece no one would care, but the article in question is an unabashed and well-disseminated character-assassination attempt, one we thought was finally worthy of our attention here on the pages of Supertouch given Shepard’s recent, and metorical rise to public prominence.”. In my opinion the Vallen article is a “gotcha” piece. Vallen may be harsh in his criticism of Fairey-- I personally don't agree with everything Vallen said--, but who ever said that criticism need be polite? Surely Shepard Fairey can agree with that.
It is not like Mark Vallen was the only person critical of Shepard Fairey in the first place. After all, Mark Vallen worked closely on the article with Lincoln Cushing -- the art historian who discovered Shepard Fairey’s infringement of a Rene Mederos poster in 2007. The infringing image by Shepard Fairey, titled ‘Cuban Rider’, was sold as a shirt in Fairey’s OBEY clothing line. A representative of Shepard Fairey acknowledged the copyright infringement and the shirt involving the image was soon after pulled from production.
One could say that the issue over Rene Mederos is what spurred Mark Vallen to write his critique of Shepard Fairey in the first place. With that in mind, does it seem that the criticism of Shepard Fairey is "baseless"? “Gotcha”, indeed. Oddly enough, Lincoln Cushing's discovery is not mentioned in the O'Shea article nor does the article mention that 'Cuban Rider' was pulled from production for copyright infringement. O'Shea mentions Lincoln Cushing, but does not state why he was involved with the Vallen article to begin with. Why leave out that critical information? I suppose O'Shea will have to answer to that.
Jamie O’Shea continues his criticism of Mark Vallen critique by stating, “The way Vallen tells it, Shepard has based his 20-year art career solely around cashing in on the work of other people. Yet the images that Vallen uses to support this claim are almost all examples of Shepard’s street art from the formative stages of his career (1990s and early 2000s),” What Jamie O’Shea fails to note is that Mark Vallen pointed out that some of the images that Fairey has used do fall under fair use due to the date of the original images.
Vallen makes it clear that some of the images that have served as the origin of Shepard Fairey's art are no longer protected by copyright while others never were in the first place-- anyone can use them. Thus, anyone can make derivative works based on them-- not just Shepard Fairey. In those examples Vallen suggests that it is not ethical for Shepard Fairey (or anyone else for that matter) to claim those specific images as his (their) own. In defense of Vallen I must say that a lot of people agree with his position. However, works that are no longer protected by copyright are indeed fair game, so to speak.
Vallen’s main complaint is that Fairey conceals the history of these images while claiming them as his own (more on that later). However, Vallen also targets images that Fairey created in 2005, 2006, and 2007 that have origins in works that are still protected by copyright. Images that do not exactly fall under fair use as far as parody or social comment is concerned because they are not widely known in the first place. You don’t have to take my word for it-- out of ten art law professionals I’ve spoken with about specific copyright allegations involving Shepard Fairey seven have agreed that Fairey went beyond the line of fair use with some aspects of his appropriation. (A few of those professionals are currently writing about this issue and will allow me to publish their research on the Myartspace Blog. Both sides of the debate will be acknowledged.)
Jamie O’Shea then states that the art from the “formative stages“ of Shepard Fairey‘s career were, “sold only in editions of 100 or 200 at $20 or $25 a pop at the time. Considering that hundreds, maybe thousands of those same posters were pasted up on the street at Fairey’s personal expense, it’s certain the artist never saw a dime of profit from all that printing and in most cases probably failed to even recoup costs.” All I can say to that is that profit is profit no matter how you try to slice the pie. Surely someone who claims to know so much about copyright as Mr. O’Shea would understand that it does not matter how the profit is used as far as copyright infringement is concerned. Profit is profit.
It does not matter if Fairey put all of the profit into printing more images nor does it matter, in recent times, if he donated the profit to political or social causes. Profit is profit where copyright infringement is concerned. In court the emotive reasoning for the decision to infringe is cast aside. In other words, in court you can't always get away with murder even if the person was killed for the greater good nor can you always get away with infringement even if it happened for the greater good. Vallen's concern is that Shepard Fairey is placing a price tag on history and that he is 'murdering' the intentions that people involved with the original art had.
I want to be clear about something. I'm not trying to take away from the good that Shepard Fairey has done. He has done great things for some wonderful causes. However, in my opinion the good that Fairey has done-- the causes, people, and animals that he has helped-- should not be used as a shied to ward off allegations of copyright infringement. Unfortunately, Fairey (in his interview with Mother Jones)-- and now O'Shea-- have done just that. In other words, they have tried to create a distraction concerning questions about copyright infringement by implying that critics are somehow against the causes that Fairey has supported. That is simply not the case-- it is petty for them to try and make monsters out of individuals who are critical of Shepard Fairey's practice. After all, just because someone is critical of Fairey's art does not mean that he or she is critical of the causes that Fairey has stood for. If Shepard Fairey feels that criticism of his art implies criticism of causes he has stood for he must truly be arrogant.
Jamie O’Shea then states, “Furthermore, none of Vallen’s reference points come from the art that Shepard has sold in recent years for substantial profit. It can’t be said whether Vallen tried but couldn’t find any clearly plagiarized imagery in that work, or simply didn’t bother to look, but his claims about cash cows simply do not add up, especially since Shepard didn’t have a single solo gallery show for the first 10 years of his career”. To that I say-- it seems to me that the Hope poster-- which has earned between $400,000 and $800,000 from what I’ve read-- was a “cash cow” even if the profit was donated or used to print more posters-- again, profit is profit no matter how you try to slice the pie.
On a side note: I find it odd that O’Shea forgot to mention the allegations of copyright infringement involving the Hope poster and a photograph taken by photographer Mannie Garcia. After all, O'Shea posted his article today and people have been discussing the Garcia image for over a week. If anything, the alleged infringement of the Mannie Garcia photograph supports Vallen’s claims of Shepard Fairey's ongoing practice of copyright infringement-- which I assume is why O’Shea left that information out of his article.
Jamie O’Shea then attacks the heart of Vallen’s criticism by stating, “In his piece, Vallen defines plagiarism as “the deliberate passing off of someone else’s work as your own,” and claims that the difference between Fairey and Lichtenstein is that the latter never laid claim to Mickey Mouse, while Shepard tries to deceitfully sneak his appropriations past viewers in broad daylight. Of course, that couldn’t be further from the truth (the Shepard part, that is). If Vallen had bothered to open “Supply and Demand,” Shepard’s career retrospective book released more than a year and a half before Vallen published his article on his site, he would have seen many of Fairey’s images reproduced side-by-side with the originals that were appropriated or referenced.”. O'Shea does not understand that just because the images are in a book that has been distributed all over the world does not mean that the 'referenced' images are known the world over.
O’Shea then states, “Clearly there’s no basis to Vallen’s claim that Shepard “filches artworks and hopes no one notices,” when the artist himself is publishing evidence of his appropriation—with accompanying text explaining his process and rationale—and distributing it openly around the world.” There is only one problem with O‘Shea‘s viewpoint-- how many people are going to pay $59.95 to find out who Fairey appropriated from?
Under fair use the general public should know this information off hand from their collective knowledge of contemporary society. In other words, they should know without having to buy a book in order to know. The public should be able to look at ‘Cuban Rider’ and say, “Fairey is commenting on the Rene Mederos poster!”. Unfortunately, Shepard Fairey has failed on that crucial aspect of fair use-- which is why it seems that he attempts to pass works by others off as his own. In that sense, Supply and Demand and the current limited edition of the book is nothing more than a way for Shepard Fairey to defend his work by saying, “See, I made everything clear in this book!” while slapping a price tag upon said knowledge. That is exactly what Mark Vallen's critique of Shepard Fairey is about.
Concerning fair use Vallen’s point is that the character Mickey Mouse is in itself iconic. Mickey Mouse is a household name-- everyone knows Mickey. Thus, one can easily make a parody or social comment about the beloved mouse knowing that people will know exactly what is being parodied or commented on under fair use. The same goes for much of Warhol’s work because he used images that the general public was aware of. You could say that Mickey Mouse and specific brands of soup are in our collective conscious-- we don't have to buy a $59.95 book in order to make the connection when those images are used in art.
That said, using aspects of a photograph or artwork that is not well-known does not exactly fall under fair use as far as parody or social comment is concerned because people will not know-- unless they research the image (in this case buy the book)-- what is being parodied or commented on. Again, when people look at the Hope poster they did not say, “Shepard Fairey has made a comment about Mannie Garcia’s photograph of Obama.”-- even Fairey claimed that he did not know who the photographer was. Oddly enough, a gallery representing Fairey acknowledged to Garcia that indeed the image Fairey had used for Hope was his photograph.
Jamie O’Shea goes on about the issue-- stating, “Overall, the concept of using reference images in the context of modern art seems to have eluded Vallen completely in regards to Fairey’s art. When he claims that Shepard strips away historical meaning and context in his artworks, he’s missing the entire point of referencing: By taking precisely the elements of an image that speak of its historical meaning and original context and incorporating them into a new image, an artist creates a visual comparison, juxtaposing new and old.” It seems to me that Jamie O’Shea is missing the heart of Mark Vallen’s criticism. Viewers are obviously not making a connection between the ‘old’ image and Shepard Fairey’s ‘new’ image-- the dialogue is missing because no dialogue has been established unless-- by O’Shea’s suggestion -- you pay $59.95 to be introduced to what is being commented on. That is not how fair use works.
To put it bluntly, when it comes to supporting fair use within the context of art you can’t simply create a dialogue by publishing a book about the dialogue in order for viewers to understand what is being parodied or commented on within the context of the art. The viewers should know upon viewing the work-- period. The connection should click in their mind-- period. If it does not click-- if a connection is not made-- then one can debate that fair use under parody or social comment has not taken place and that instead the ‘new’ art has infringed on the ‘old’ art-- period. In other words, O'Shea should stop trying to pitch Fairey's book Supply and Demand and instead discuss why people are not making the connection on their own!
O’Shea continues, “Such a contrasting is inherent in the act of referencing, and the intended result is for viewers to consider the relationship of the two images and hopefully spark a dialogue: Are they really distinct, or just symbols of the same phenomenon? Is the artist saying the two images are similarly or differently relevant? Is the older image outdated and in need of an update, or is it a commentary on society’s perverse obsession with overhauling classic works? Does this new recontextualized image make me feel any differently than the old one did?” followed by “These are questions most people consider, usually subconsciously, when looking at images that employ references as visual cues.” Is O'Shea clueless? There are a number of people who did not make the connections until they read Mark Vallen's article. Honestly, I wonder how many people knew about Rene Mederos before reading Vallen's critique?
Again, it seems to me that Jamie O’Shea is missing the heart of Mark Vallen’s criticism. Viewers are obviously not making a connection between the ‘old’ image and Shepard Fairey’s ‘new’ image-- the dialogue is missing because no dialogue has been established unless you pay $59.95 to be introduced to what is being commented on or parodied. In order for fair use to apply-- based on the conversations I’ve had with art law professionals and members of the arts community-- the connection must be obvious from the start or it simply is not fair use. If anything a case could be made against Fairey’s defense of his images as fair use due to the lack of dialogue-- the lack of a connection that should be made by the typical viewer upon viewing Shepard Fairey’s art.
Needless to say, I’m surprised that Jamie O’Shea used Supply and Demand to defend Shepard Fairey’s understanding of fair use. By implication O’Shea is suggesting that the connection and dialogue expected of fair use is being made by the book itself rather than specific images by Shepard Fairey. Again, the typical viewer should not have to pay $59.95 in order to realize these connections. If fair use was used in the way it is designed the viewer would be able to make those connections on their own. In other words, viewers would be aware of the dialogue going on between the ‘old’ image and the ‘new’ image by Fairey without having to read a brief history lesson about the connection.
Thus, Supply and Demand is not exactly the best source of defense for Shepard Fairey concerning alleged infringement. In fact, O’Shea’s viewpoint reveals that their needs to be more dialogue about Fairey’s alleged infringement so that the typical viewer understands the lack of dialogue and connection that is being made when Fairey utilizes fair use so that they can then question if it is fair use at all. I believe that was another point of Mark Vallen's critique as I understand it.
Jamie O’Shea goes on to defend Shepard Fairey by comparing Fairey’s appropriation to the use of appropriation in artworks created by artists in the recent past. O’Shea states, “Vallen must believe the Sex Pistols used the official portrait of the Queen of England and put a safety pin through her lip because they couldn’t do any better on their own and needed an image that would sell.”. Having read the Vallen article I don’t think he is suggesting that at all. In fact, Vallen makes it clear that some forms of appropriation are legitimate. The official portrait of the Queen of England is fair game as far as fair use is concerned due to parody or social comment. That specific image of the Queen, even back then, was known the world over. Thus, comparing the album art to Fairey’s art is not exactly a true comparison as far as fair use is concerned. It should be noted that O’Shea did not bother to mention the name of the artist who created the iconic image for The Sex Pistols-- Jamie Reid.
Jamie O’Shea then attempts to make the issue a conservative versus liberal scenario by stating, “Vallen goes on to question whether Shepard truly supports the left-wing causes he depicts in his work, claiming that it’s “not impossible to view Fairey’s work as right-wing in essence, since it largely ransacks leftist history and imagery while the artist laughs all the way to the bank.”. O’Shea then goes into a rant about how Shepard Fairey would not risk his life spreading a “left-wing” message if in reality he supported “right-wing” views. He then states, “Furthermore, would a true right-wing ideologue have any interest in spreading left-wing imagery, even if he did make a few dollars in the process? Could Vallen really believe an artist who donated all of the proceeds from sales of Obama posters to his presidential campaign (according to public campaign finance information available online, Shepard and his wife, Amanda, donated $300,000 to $400,00 to Obama, the Democratic National Committee Democratic committees in various swing states, and other Democratic “victory funds”) did so only to go home and secretly pray to an altar of George Bush or even worse, Dick Cheney?”. Unfortunately, I think that Jamie O’Shea is taking Mark Vallen’s words way out of context.
Vallen was not commenting on ‘left’ and ‘right’ as in Democrat or Republican or liberal or conservative. Instead he was using left wing and right wing beyond just the American interpretation of catch words involved in discussions of two rival political parties in the United States. Vallen was thinking globally by stressing that he feels that Shepard Fairey has exploited artworks from movements that are considered leftist on the global political spectrum, so to speak.
In other words, Vallen feels that Fairey has shown those movements and the artists behind those movement great disrespect by using art works associated with the causes they fought for in a way that the average viewer will most likely not make a connection with. Thus, the history of their struggle is lost in Shepard Fairey’s art-- unless, based on the implications of O’Shea’s words, you buy Supply and Demand for $59.95.
Here is what Mark Vallen said, “Some have, for whatever reason, imagined Fairey to be a progressive political figure, a perception certainly cultivated by the artist; but it’s also not impossible to view Fairey’s work as right-wing in essence, since it largely ransacks leftist history and imagery while the artist laughs all the way to the bank.” Vallen goes on to say, “For me, the question is not what Fairey’s political allegiances may or may not be, but rather, how his work sets a standard that is ultimately damaging to art and leads to its further dissolution. When a will to plagiarize and a love for self-promotion are the only requirements necessary for becoming an artist, then clearly the arts are in deep trouble.”.
My interpretation is that Vallen was simply pointing out that specific images by Shepard Fairey have not made a true connection with the images they are based upon. In that sense, yes-- they take away from the history of the original intent of the source images and the movements they were associated with. Vallen did not mention Bush or Cheney in connection to Shepard Fairey-- he did not even mention conservatism or liberalism or Republican and Democrat. It would appear that O'Shea's view of left and right politics is rather limited.
O’Shea continues, “If Vallen is to be believed, the same must be true in the case of Fairey’s countless donations of artworks and money to causes like the Chiapas Relief Fund, Hope for Darfur, the ACLU, MoveOn, the movement to overturn Prop 8, 11th Hour Action, Hurricane Katrina relief, Southern California fire relief, LA teenage shelters, children’s charities in Iraq and the U.S., Free the West Memphis 3, and Rush Arts for inner-city schools (to name just a few). Fittingly, the most ridiculous aspect of this “stealing from the left to give to the right” argument is that Vallen himself makes—and sells—art depicting left-wing figures and social issues, just like Shepard does. It’s not impossible to view him as a hypocrite.” It looks like once again the shield of charity has been raised!
Again, Jamie O’Shea fails to grasp the global implications of Mark Vallen’s use of ‘left’ and ‘right‘. Vallen did not say anything about Shepard Fairey ‘stealing art from the left to give to the right’ as O’Shea suggests. However, if O’Shea wishes to think on those terms I will point out where Vallen offered an example that could be called taking from the right to give to the left-- with a whole lot of ignorance in between. Vallen goes into great detail about an issue involving Shepard Fairey and the Nazi Death’s Head logo of the Gestapo.
Vallen explains, "In 2006 Fairey printed a near exact copy of an already existing skull and crossbones artwork he found, altering the original design only by adding the words "OBEY: Defiant Since '89" along with a small star bearing the face of Andre the Giant. The image was reproduced as a T-shirt and added to Fairey’s OBEY fashion line.
As luck would have it, Wal-Mart plagiarized the master plagiarist, copying and printing Fairey’s rip-off and adding it to the superstore’s own fashion line. A shopper at Wal-Mart recognized the skull motif’s origin and angrily protested - as it was an exact duplication of the infamous logo belonging to the Gestapo, the Nazi "secret state police" that served as personal bodyguards to Adolf Hitler and administered the concentration camps where the genocide of the Jewish people was put into practice.
Unsurprisingly Wal-Mart’s T-shirts became a nationwide controversy, with legions of infuriated citizens insisting the superstore apologize and pull the offensive items from their shelves - a demand that was ultimately met. Eventually it came to light that Shepard Fairey was first responsible for manufacturing and selling the T-shirt, and when confronted by the website, consumerist.com, Fairey offered the following excuse: "When I made that graphic I was referencing a biker logo and it was only brought up to me later that it was the SS skull." First, Fairey openly admits to directly copying an image created by someone else (he calls this "referencing"), and then feigns innocence when faced with the odious background of the original Nazi designers. In the same set of remarks made to consumerist.com, Fairey insists that he is "anti-fascist and pro-peace", but what kind of anti-fascist does not recognize the symbols used by the Nazi regime? Fairey’s only defense here is full-blown ignorance - hardly an attribute expected in artists supposedly dedicated to social commentary.”
I wonder what Jamie O’Shea has to say about that? It seems he forgot to mention that aspect of Mark Vallen’s criticism of Shepard Fairey. Did he leave it out because Vallen was dead on in his criticism of Shepard Fairey?
I could examine the two articles further, but I think it is best to stop for now (I may tackle the second half this week). This is how I see it--- Shepard Fairey has stated the following about his art, "The real message behind most of my work is ‘question everything.". Thus, I would think that Fairey would understand that people are going to question his work-- question everything about it. Is that not what he wanted? Or is the message itself a contradiction?
Shepard Fairey, who embraces the idea of ‘questioning everything’, should not state that people who criticize him are “jealous”, “lazy”, or “full of apathy”-- or any number of attacks that Fairey and his supporters have made against those who question his art, methods, and ethics. In fact, I would say that said choice of words reveals the truth of Mark Vallen’s article. After all, people generally respond with harsh words when there is reason for criticism.
My guess is that from this point on Shepard Fairey will be very careful not to infringe on copyright protected artworks or photographs. After all, his cleanup crew-- people like Jamie O’Shea -- can only do damage control so many times before people start to demand answers in mass. Don’t forget to wring out the mop O’Shea.
Links of Interest:
Obey Plagiarist Shepard Fairey A critique by artist Mark Vallen
THE MEDIUM IS THE MESSAGE: SHEPARD FAIREY AND THE ART OF APPROPRIATION -- SuperTouch
Lawyers and Law Professionals Weigh-In on Shepard Fairey Copyright Infringement Allegation
Shepard Fairey: Obey Copyright
Take care, Stay true,
New York Art Exchange