Is Shepard Fairey a hypocrite?

I’ve written that I believe strongly that Shepard Fairey’s Obama Hope poster does not infringe the copyright of the AP photograph he stenciled to begin his work. First, I think the poster is a fair use of the image, and, second, I think the poster doesn’t take anything that can be copyrighted from the photo.

But Fairey’s practices have often raised questions about the originality of his art.

There are also questions about his possible hypocrisy. MYARTSPACE today focuses on the fact Fairey is trying to assert he has a trademark in the term OBEY. The blog also discusses two potential claims of copyright infringement by Fairey against other artists.

I’ll stick to the copyright claims. They involve two works that borrow significant elements from two of Fairey’s works. In fact, they borrow everything except the mask over the face of the image on Fairey’s poster:

Both images copy far more of Fairey’s original than Fairey’s Obama poster borrowed from the AP photograph. Nonetheless, there’s a very good argument that they are parodies of Fairey’s original, and thus constitute fair use. A parody uses the original work to comment on the original work rather than using the original work to express a point of view independent of the original work. That isn’t to say using the original in non-parody ways isn’t fair use; it’s only to say that the amount of copying permitted for commenting on copyrighted material is considerably greater than if the appropriating work is not commenting on the copyrighted work.

Fairey’s company sent a cease-and-desist letter to Baxter Orr (the creator of the image above). Orr nonetheless continues to sell his painting online, and Fairey has not followed up with any legal action. Nor has he taken any action at all as far as I know against Dan Nolan, the creator of the poster on the right.

I hope he doesn’t take any further action on Orr’s poster or any on Nolan’s. Nonetheless, the cease-and-desist letter might be an instance of copyright overclaiming. Most people, I think, would have taken the image off the internet rather than do what Orr has done.