The Barefoot Photographer®

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Wednesday, July 15, 2009

Asking for permission wards off a lot of grief : Opinion : The Buffalo News

Fairey is being sued by the Associated Press and photographer Manny Garcia for using a published AP photograph of President Obama to create the iconic “hope” poster. Fairey claims use of the photograph falls under the protection of the “fair use” provisions of copyright law.

Trained at the prestigious Rhode Island School of Design, Fairey was already an accomplished artist and designer. But this pedigree doesn’t exclude him from the common and accepted practice of using photographs as studies.

Garcia, for his part, has suggested in published reports that his lawsuit isn’t about money but recognition, saying, “I just want Shepard Fairey to say, ‘all right, you’re the guy. Thank you.’ ”

Both have compelling arguments, but I wonder if this might have been avoided entirely had Fairey just picked up the phone.

Years ago I had a heated debate over “fair use” and copyright law with several artist co-workers. I researched the issue and unearthed the case of Jeff Koons, an artist who was sued in the 1990s by a photographer who claimed that Koons used the photographer’s work to create a sculpture called “String of Puppies.”

The photograph, a black-and-white postcard print of an elderly couple showing off a line of pups, was quite damning when compared to the sculpture, and the courts agreed. Though Koons’ lawyers claimed “fair use,” the court found that the similarity was so close that it could be construed that the sculpture was a copy of the work.

I contacted the photographer, Art Rogers, via e-mail. He replied that, at the time, he attempted to contact Koons but that he would deal only through lawyers. Rogers added that if Koons had just spoken with him directly, the case likely would not have proceeded.

That e-mail conversation colored my own artistic ambitions. As an artist without formal training I started out using published photographs as models for my own work as a woodcut printmaker. It was after an exchange with a customer at an art show that I understood the importance of seeking permission from photographers.

I introduced myself to a woman studying a print of two Adirondack chairs by a lake at sunset. She said, “I love this print.” I beamed until she added: “I’ve been making photographs of two Adirondack chairs in different settings for years. It’s such a coincidence.”

That day I was introduced to flop-sweat, and I’m not a fan. Not because I felt she was a legal threat, but because I’d stolen someone else’s work without permission and I felt awful.

On the flip-side, when my wife and I started working art shows, we were deeply under the influence of the early 20th century graphic design of Roycroft artist Dard Hunter. We chose a modified version of one of his drawings as our logo. Thinking it good manners, I located Hunter’s grandson and requested permission to use the design. He replied cheerfully that “most people wouldn’t bother to ask,” adding that his grandfather would be “tickled” to give permission to lovers of his work.

And so, I am left pondering the state of civil suits: Perhaps there would be fewer suits if we were all just a bit more civil.

By Jeffrey Dean

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