Art builds on art, be it Shepard Fairey’s Obama Hope poster or the re-tellings of myths and legends.

I have made clear, at length, my view that Shepard Fairey’s Obama Hope poster is a legitimate, non-infringing fair use of the photo Fairey appropriated as its source material. But I think Fairey himself expresses well in this interview from The Knowledge the basis of that belief, that the very nature of a lot of art (and, I might argue, all art) is to build on and refer to pieces of the culture in which we live and that without the freedom to appropriate pieces of that culture in ways that don’t merely exploit the value the creators of those pieces themselves have built we will diminish our culture. Fairey explains:

“I do think that copyrights and intellectual property are important—it’s important to be able to keep people from making verbatim copies of a particular creation that could somehow hurt the creator. If I spend time conceiving and making a piece of art and somebody else sees that it has market value and replicates it in order to steal part of my market, then that’s not cool. But the way I make art—the way a lot of people make art—is as an extension of language and communication, where references are incredibly important. It’s about making a work that is inspired by something preexisting but changes it to have a new value and meaning that doesn’t in any way take away from the original—and, in fact, might provide the original with a second life or a new audience.”

He goes on to explain, in terms that are very personal to me, the implications of an alternative view, often referred to as a position in favor of “strong” copyright protection”:

“The problem with copyright enforcement is that when the parameters aren’t incredibly well defined, it means big corporations, who have deeper pockets and better lawyers, can bully people. I don’t want to start making enemies in the corporate world, but there are plenty of cases. For example, there is a tradition of certain fairy tales being reinterpreted, and now, all of a sudden, a big corporation that has a mouse on its logo decides it’s going to copyright these fairy tales, which ends the cycle of these things being reinterpreted. What happens with these big entertainment companies is that they start to get a monopoly on the creation of culture. But I think that the more people participate in the creation of culture, the richer the culture becomes. In the case of the Obama poster, I was just exercising my First Amendment rights—and my free speech is exercised visually. People who want to talk or write in order to share an opinion about Obama can do that, but when I want to say what I think about him, I need to make a portrait. And if I can’t make a picture based on a reference because all references are copyrighted, then my only options are to pay a licensing fee—and possibly be turned down because the person licensing the image doesn’t agree with my political viewpoint—or to try to get a personal sitting with Barack Obama to make a portrait of him, which presents its own obstacles. So I don’t think all this is good for free speech.”

This is a personal matter because my sister, Amy Friedman, writer and teacher extordinaire, has for twenty years written on a weekly basis versions of fairy tales, folk tales, and legends from around the world and throughout history, an enormous corpus of work that is syndicated by Universal Press Syndicates under the name Tell me a Story (entire archive available). Needless to say, copyright concerns throughout this decades long endeavor, only one of many in which she engages, have been foremost in her mind, but there has never been any doubt either that her stories, while based on pre-existing creations from as many cultures and as many times as are virtually conceivable, are legitimate art in their own right and, therefore, enjoy their own copyright protection.

Amy’s story is important in another way. Not only would the Disney’s of the world co-opt the subject matter she makes her own, but she also is an artist in the truest sense. She is not a best-selling author. No one I’ve ever known works harder, and working at making a living as a writer, as she always has, is as difficult a task as one would wish upon a sister. She doesn’t depend on her copyrights to make her living — she depends on delivering a product that consumers want, whether they be students or parents who want wonderful audio stories for their kids. People like Mark Halperin, rich best-selling author and conservative pundit, , who bitch about copyright protection don’t know what they’re talking about. They live in an age in which digital information can be remixed and distributed worldwide by anyone with a laptop and an internet connection, an age in which their views of authorship and artistic production are, in a word, outmoded. The real artists are people like Amy, who eke out a living (one whose comfort level she expresses no complaints about).