DISCUSSING “FAIR USE” AND COPYRIGHT POLICIES WITH STUDENT ARTISTS

The unclear boundaries surrounding plagiarism in the arts is certainly nothing new. As the art world has become increasingly dominated by digital media, it has been changed by unprecedented access to an exponentially growing database of creative output. This access has created a global art network and expanded access to the arts in was never before possible. However, such seemingly unrestricted access has allowed for easier means of plagiarism, as well as more targeted ways apprehending plagiarists.As an educator, I feel it is necessary for emerging artists, or any person engaged in the arts today, to understand these issues on two levels: 

1. One should draw their own moral and ethical conclusions as to what constitutes “fair use” and where they personally feel that creative access crosses over into the territory of stealing. 

2. One absolutely must understand the currently legality of copyright and fair use practices in order to protect their own work from misuse by others, understand their own legal rights and limitations, and defend their reputation as respectable artists. 

It is important for students to understand that these are two entirely separate issues. It is absolutely important for artists to develop their individual views of regarding the creative process as well as access to cultural material. However, for practicality above all else, it is critical for any young artist to understand legal consequences they may face from their actions, regardless of how benign their intentions may be.

A recent fair use case that is appears  to have come to  a final (legal) resolution, but very much part of pop culture discussion today, is that of Shepard Fairey and his Obama “Hope” poster.

Original AP photograph (left), Hope Poster, Shepard Fairey, 2008 (right), via NPR.com

Fairey, a street artist, created the original scree print with the use of a Associated Press photograph, featuring the then Presidential candidate. The image quickly emerged as the unofficial icon for the high profile campaign. One can easily argue that Fairely was within his rights under Fair Use laws because the dominating features of the work are not dependent on the original AP image. However, his ethics become a bit more questionable when you account for the fact that he charged manufactures of clothing, print works, and other memorabilia to use the image, without ever sourcing AP.Months went on without either AP or the original photographer recognizing the source of the image. When the source was finally discovered Fairey owned up to his unlicensed use of the image.  The AP sought to sue the artist for copyright infringement but the artist then rebutted by counter suing the AP. Eventually the two parties settled out of court. Although, the case does not end there. 

Fairy was taken to court again, this time for lying to the court and withholding evidence in his original trial. He originally claimed to have used a different AP photo of Obama, one that is less similar to his final design. The artist pleaded guilty and was sentenced to community service and order to never use an AP image again without the organization’s consent.

Ethics aside, and both sides of this case certainly have grounds for debate. Money and claim to fame are huge factors in the creative world, something I feel it is important for students to understand. Even if Fairey was morally sound in his use of the Obama image, he has repeatedly sued other artists for appropriating his own images and made a fortune selling the rights to his works.The AP on the other hand faced no real damages under Fairey’s hands. It seems that this entire battle began because a powerful company (not the original photographer) saw an opportunity to get media attention, monetary gains, and a artistic credit from an historically important piece of pop culture. In fact, while researching for this post, I realized that most images I came across regarding this case, Fairey’s other works, and Fairey’s himself, were all owned by AP. Media outlets seeking  to use even a stock photo of the artist were charged a hefty sum by the AP. Bit ironic, no?

However, not all cases of artists using media images in their pieces have created such controversies. The examples below, taught uncontroversially in any survey of modern Art History, could be used to facilitate such a discussion in classrooms or coffee shops alike:

Marcel Duchamp,  L.H.O.O.Q., 1919, post card reproduction with mustache and title added in pencil, Wikimedia Commons

Duchamp, famous for his “ready mades” drew a mustached and added the title “L.G.O.O.Q.” with graphite pencil on a postcard reproduction of Leonardo da Vinci’s  Mona Lisa (1503-1517)

Walker Evans, Movie Poster, 1930, photograph, Wikimedia Commons

Some of Evans’s most famous works were his photographs of advertisements and movie posters pasted on the outside of buildings.

Andy Warhol, Sixteen Jackies, 1964,  Walker Art Center

One of Andy Warhol’s prolific portraits, Sixteen Jackies was created with cropped photos from newspaper clippings. 

Some Great Learning Materials for Educators:

Teachers, Check out this great lesson plan on Fairy’s legal issues and “fair use,” from The SmART Teacher art ed blogger, LiveColorfully

Remix The Book offers up some fantastic discussion topics regarding appropriation and the arts great for the classroom or gallery opening.

Interested in becoming an advocate for free use and equal access to digital culture?

Creative Commons is a non-profit that “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.” They offer great education information, copyright licenses, and a platform to share your own creative material discover great material, all free and legally accessible for public use.

The Free Culture Foundation has some basic educational resources and opportunities to get involved.  The organization (though not the movement) began as a student organization. It recently expanded to all communities advocates, but appears to be very much rooted in a campus-based, minimally-hierarchical  that is particularly accessible to students. (Super out-of-the box class project?)

*This post originally appeared on my wordpress hosted blog: musinginmuseums.wordpress.com