Fairey Case Sparks Questions on Using Photos as Art Reference

Posted on 3/18/2009 by Jim Pickerell | Printable Version | Comments (2)

As a result of the publicity surrounding Shepard Fairey’s use of an Associated Press photograph, taken by Mannie Garcia, as reference for his very successful Obama Hope poster, a university inquired into standard stock-industry practices for the use of photographs as reference for fine or street art. The university wanted to advise their students on appropriate practices. I supplied them with the following:

Any image offered for licensing as rights-managed by its creator must be properly licensed for any use whatsoever, including use as art reference. A license can be obtained by contacting the creator, his representative or the copyright holder. As a practical matter, many creators will charge a very small fee and request a credit, depending on how the image is to be used. In cases where merchandising or very wide distribution of the resulting art work is likely, the creator of the original image is likely to negotiate a very substantial fee.

As far as I know, if the photograph in question is being offered for licensing as royalty-free or microstock, the normal basic licensing fee entitles the artist to use the image for art reference or in almost any other way without additional compensation. The terms and conditions of royalty-free and microstock licenses do vary. Therefore, it is strongly recommended that anyone contemplating use of an image as art reference read the terms and conditions carefully before licensing the image.

In the Fairey case, the AP threatened to sue, Fairey preemptively countersued, and the AP filed a counterclaim, accusing Fairey of copyright infringement. The AP seeks the dismissal of Fairey’s lawsuit and unspecified damages, including any profits—estimated at over $400,000—Fairey and his company, Obey Giant Art, made from the image. Fairey claims fair use; however, Fairey previously used a David Turnley photo in another design and obtained Turnley’s permission. This clearly shows Fairey recognizes that such situations require obtaining permission and giving appropriate credit. The design based on the Turnley image was not used on merchandise.

Copyright © 2009 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


  • Rio Helmi Posted Mar 18, 2009
    Shepard Fairey might be opportunistic, but also stupid. On the one hand he is totally aware of the issue of obtaining permission for his work, and in in the Turnley case even for design that is not even used on merchandise, and then for a major merchandising number he doesn't get permission? he made $400,000 on someone else's shot. Why does he need a break? 'Obey' the law would be a good start.


  • Scott Teven Posted Jan 19, 2014

Post Comment

Please log in or create an account to post comments.

Stay Connected

Sign up to receive email notification when new stories are posted.

Follow Us

Free Stuff

Stock Photo Pricing: The Future
In the last two years I have written a lot about stock photo pricing and its downward slide. If you have time over the holidays you may want to review some of these stories as you plan your strategy ...
Read More
Future Of Stock Photography
If you’re a photographer that counts on the licensing of stock images to provide a portion of your annual income the following are a few stories you should read. In the past decade stock photography ...
Read More
Blockchain Stories
The opening session at this year’s CEPIC Congress in Berlin on May 30, 2018 is entitled “Can Blockchain be applied to the Photo Industry?” For those who would like to know more about the existing blo...
Read More
2017 Stories Worth Reviewing
The following are links to some 2017 and early 2018 stories that might be worth reviewing as we move into the new year.
Read More
Stories Related To Stock Photo Pricing
The following are links to stories that deal with stock photo pricing trends. Probably the biggest problem the industry has faced in recent years has been the steady decline in prices for the use of ...
Read More
Stock Photo Prices: The Future
This story is FREE. Feel free to pass it along to anyone interested in licensing their work as stock photography. On October 23rd at the DMLA 2017 Conference in New York there will be a panel discuss...
Read More
Important Stock Photo Industry Issues
Here are links to recent stories that deal with three major issues for the stock photo industry – Revenue Growth Potential, Setting Bottom Line On Pricing and Future Production Sources.
Read More
Recent Stories – Summer 2016
If you’ve been shooting all summer and haven’t had time to keep up with your reading here are links to a few stories you might want to check out as we move into the fall. To begin, be sure to complet...
Read More
Corbis Acquisition by VCG/Getty Images
This story provides links to several stories that relate to the Visual China Group (VCG) acquisition of Corbis and the role Getty Images has been assigned in the transfer of Corbis assets to the Gett...
Read More
Finding The Right Image
Many think search will be solved with better Metadata. While metadata is important, there are limits to how far it can take the customer toward finding the right piece of content. This story provides...
Read More

More from Free Stuff