Ever wonder why ushers on Broadway become “Camera Nazis” whenever they spot a still camera or video camera in the house?
Ever wonder why you can’t just skip over those FBI warnings at the start of every DVD?
Ever wonder why “piracy” is always such a big issue for Hollywood when discussing our economic relationship with China?
It’s because writers, actors, directors and producers all live and die from royalties and residuals (payments for the repeated use of a copyright protected piece of intellectual property). I know most people don’t want to hear this, but being a writer, director or actor is usually not a great life. Until (or unless) you are lucky enough to make it big, it is fiscally challenging to say the least. So many actors who are not stars are lucky if they get one or two weeks’ worth of work in Hollywood per year. How does an actor survive on only two weeks’ pay? They don’t. But, one thing that helps them is they get paid for every subsequent use of the show they were on. Same with the writer and the other creative folks working on the show.
But, as you can imagine, if their work could be legally duplicated and distributed without any payment to them for their work, it would seriously disrupt the financial life of these artists. That is called copyright infringement, or piracy. The adherence to the fundamental belief that an artist’s work is protected, a writer’s words and stories are protected, and an actor’s image and performance is protected from duplication and piracy is fundamental to the economics of the artist’s business.
Enter Shepard Fairey.
Shepard Fairey is often referred to as a street artist. He made a name for himself by creating large posters and sticking them up by the thousands on public places. Others would call this vandalism, but I digress. He is heralded as the creator of the Obama “Hope” poster which is seen as a major influence in rallying devoted support to the Obama candidacy. The “Hope” poster conveyed in one image and in one word everything that the campaign wanted its most fervent allies to embrace, champion and (most importantly) to perpetuate to their friends who might not have been quite as fervent. The poster has been described as “the most efficacious American political illustration since ‘Uncle Sam Wants You.'” There is no denying its efficacy, even if its message doesn’t send a “thrill up your leg.” Only problem with it: It appears to be pirated.
I’m sure that this revelation has sent many of Fairey’s admirers into the same depression that George Harrison fans felt when it became clear that “My Sweet Lord” was just a rip-off of the Chiffons’ hit “He’s So Fine.” (Seriously, the fact that George Harrison may have ripped off another tune is one thing… but “He’s So Fine”???)
In February (a convenient two weeks after the inauguration), the AP announced a copyright infringement lawsuit against Fairey claiming that the image Fairey used was copyright protected intellectual property owned by the AP. Fairey’s response was two-fold: First, he claimed protection of his poster under the “Fair Use” guidelines of the copyright laws, and, second, it doesn’t really matter anyway because the AP is wrong; the image used as the basis for the poster was not the image AP claims ownership of, it was another photo. Any reasonable examination of the original AP-owned photo and Fairey’s poster would seem to favor the AP’s argument — and just this last Friday, Fairey not only admitted that the AP’s image was, in fact, the image he used, but he also admitted lying, submitting false images and destroying others during the discovery phase of the lawsuit. He still clings to his over-riding defense that his art and use of the photo is not piracy as it falls under the “Fair Use” guidelines.
Now, I’m not a lawyer, and I don’t even play one on TV (although I think I would do a better job than some of those replacement actresses in the last season of “Boston Legal…” Geez!), so I am not here to argue about the “Fair Use” provisions in the copyright laws. But, I do suggest you read the provision and consider the issue for yourself.
OK, back to Hollywood and Broadway.
Those actors on stage during act one who see a red light in the house indicating a video camera is on them…. They will go right off stage and demand that the stage manager do something. The stage manager then tells the house manager, the house manager tells the usher, and THAT’s why you are being distracted by a seventy-year-old woman climbing over three rows of seats trying to wrestle a camcorder from an unsuspecting patron during “Phantom of the Opera.” It’s not because the red light is distracting them… it’s because they are protecting their performance and their image from being duplicated and distributed without their permission. It is their right. Just as it is the right of a professional photographer to protect their product from being copied, slightly altered and re-distributed without THEIR permission.
So imagine my surprise when I didn’t see one person from the Writers’ Guild or from SAG cheering on the AP. How could they not? The writer’s just endured an industry-crippling strike and the major issue was residual payments for use of their product on the Internet. Though Internet re-plays of “30 Rock” is not exactly the same as barely photo-shopping a photo and distributing it as art, but the core principal is the same: A work of art or entertainment must be protected from duplication or re-distribution or the entire copyright edifice will begin to crumble. Michael Moore was so thrilled with the WGA in their unwavering position on the webcasts, that he gushed to the LA Times:
“This is an historic moment for labor in this country, …To have the writers union stand up like we did, not give back a single thing and make them give — it was a really great moment to sit in there and listen to everything.”
So why are Moore and other left-leaning artists, writers and directors relatively silent on the Fairey issue? You would think that the protection of intellectual property is something they would champion.
The question answers itself. Fairey is an artist who uses his art for the right reasons. He helped get Obama elected. He made a great poster in support of same-sex marriage. He gave President Bush fangs and a trickle of blood down his chin in another poster. “So what if he broke copyright laws… his art is effective, he’s cool, and he thinks like us, we will look away.” I love the smell of cognitive dissonance in the morning.
Before you lefties start flaming the comments with claims that Fairey made no money off of the poster so there is no infringement… understand one thing: Whether Fairey made money or not, it doesn’t matter with regard to copyright laws. I can’t put on a production of “Wicked” at the local high school gym as long as I don’t charge any money for tickets. I can’t make copies of the DVD of “Titanic” and start handing them out for free on the street. You MUST know that, right?
And by the way, to suggest that Mr. Fairey has not benefitted from his association with the “Hope” poster is disingenuous at best. Mr. Fairey is currently enjoying the honor of having a special exhibition of his work at the Warhol Museum in Pittsburgh. A hand-crafted collage version of the “Hope” poster is now in the Smithsonian. If you think that the sale of future Fairey works will not be influenced by this, you don’t understand market economics. Also, just because Fairey might not have made any direct income from the poster, does not mean that someone didn’t make any, most notably, the Obama campaign and transition teams.
In all of my searching for some sort of outcry over Fairey’s use of protected work for his poster, I did find an interesting trend. It seems that in the past, one of the champions of copyright protection with regard to these types of images and artwork has been none other than Shepard Fairey. You see, before “Hope” there was “Obey,” Fairey’s breakout poster in which he used a photo of wrestler Andre the Giant, modified the image, and affixed the word “Obey.” The iconic image was adapted recently by artist Baxter Orr. Orr gave Andre a SARS surgical mask and gave it the caption, “Protect Yourself.” What did “Fair-use Fairey” do? He sued Baxter Orr. Orr cries hypocrisy: “”It’s ridiculous for someone who built their empire on appropriating other people’s images,” he said. “Obey Giant has become like Tide and Coca-Cola.” Fairey’s gentlemanly response? He called Orr a “parasite.”
But this is only Fairey’s protection of his famous “Obey” icon, right? He doesn’t care what people do with his “Hope” poster… that was all done for free and to benefit the Obama campaign, right? Well…. It seems that many of the posters that got distributed to Obama supporters at events were found on eBay auctions (those damn capitalists) and Mr. Fairey was not amused. He demanded that eBay take down the auctions, his website called the people engaged in the sale as “greedy” and he subsequently opened up a page for the exclusive sale of signed “Hope” posters.
Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist. But they won’t. And they won’t protest for an end to the Afghan war even though casualties are mounting under President Obama’s watch. And they won’t claim President Obama is taking away their freedoms even though he extended President Bush’s declaration of national emergency this past September 10th (something the left continually criticized President Bush for).
One wonders what fault, if any, the left will find in this President or his loyal supporters like Fairey.