AP Sues Shepard Fairey

Posted by Scott

It was only a matter of time I guess. It seems like we just learned the source of Shepard Fairey’s iconic image for the Obama campaign and now Fairey himself is being sued by Associated Press for his appropriation of the image. This is when sorting out exactly what qualifies as “fair use” starts to get a little tricky. Fairey says he didn’t make any money from the image (frankly, I don’t see how that’s possible, but I’ll give him the benefit of the doubt), but AP alleges he made a boatload of it. Whatever the case may be, credit is due to the original photographer, but I don’t believe Fairey should be held liable for his use of the image. I think it could be — and hopefully will be — successfully argued that Fairey modified the image sufficiently. What do you think, does vecotrizing and coloring an image go far enough to differentiate the artistic product from the source? Sound off in the comments.

Update: Supertouch has posted a sort of official response to the general criticism Fairey has endured of late. Definitely worth a read if you took the time to read all the detractor’s sites.

Image via stevesimula

110 Comments Leave A Comment


frank says:

February 6, 2009 at 1:35 am

I hope AP bankrupts him. I can’t stand that guy. I would think his Mountain Dew logo would be enough to make him persona non grata around here. I’m torn about the actual ethics and legalities behind sampling others work though so it will be interesting to see how this plays out. His history in this regard is pretty detestable though.


James says:

February 6, 2009 at 1:41 am

I think that ethically Shepard is definitely in the wrong here. He gave no credit to the original photographer who managed to capture an angle of Obama that was obviously so perfect that he wanted to use it. I also think he’s talking BS about not making any money out of it. Even if he didn’t gain money, he gained amazing exposure which equates to money.

Shame, you’d think someone of this status and talent would have no problem admitting his source, espeially given that image will be scrutinized publically!


Daniel Carvalho says:

February 6, 2009 at 1:50 am

This is an extremely interesting and important topic to me more from a moral perspective than a professional one.

Admittedly I’ve used photography as a source for quite a few corporate identities and iconography I’ve designed in my time. Although this is where it gets seriously tricky, if you take it from a purely technical standpoint, we know that exactly 0% of the original photograph is present in that final output, and that is the point I would stand my argument on.

I don’t believe noting the slight differences between the two make a case at all, the artwork — no doubts — still used the photograph as reference.

So, in my humble opinion, I don’t believe Shepard Fairey should be punished because I don’t think what he did was wrong. But, in saying that, as said above — as a matter of etiquette — some credit should have been given to the photographer.

I honestly don’t have a clue how Fairey can state he didn’t make money selling off signed copies, I definitely he wasn’t doing himself any favours by stating that. But that is irrelevant to me anyways.


Imar Krige says:

February 6, 2009 at 2:00 am

I don’t know enough about Shepard Fairey to have an opinion about him as a person. I watched an interview with him on The Colbert Report ( in which he claims that the artwork is in the public domain and that he made no money from it. If he denies any copyright on this work, then I don’t see how they could successfully sue him?
Also, as a graphic designer I really feel that recreating an image in a completely different medium (vector art in this case) should not be considered an infringement of copyright on the original source.
I HOPE Shepard wins this round.


Clint says:

February 6, 2009 at 2:00 am

Yes! down with this Shephard character and his none-source giving ways!

In fact: Find out who took that original Andre that giant picture! Shephard more than likely never credited HIM for that photograph, someone deserves royalties here big time. Who cares if shephard took the original and made it into something the creator never dreamed or could possibly pull off with their own talent, or make a franchise out of.

we designers, we demand justice.

hurray for the massive international organization AP! I’m glad AP is acting in the interests of Garcia – the photographer, who they fired but kept the image rights to.
– hopefully justice will be served.


michael j. says:

February 6, 2009 at 2:09 am

it’s tough, you have to take into consideration that many people want to discredit shepard’s work…it’s definitely not the first time someone has publicly tried to cut him down. and why now? this image has been seen the world over since the primaries.

it’s not to say that people shouldn’t be given credit for their work, that would be a ridiculous notion. and i agree with scott, i don’t see how shepard didn’t make something off of this whole campaign but i am also willing to give him the benefit of the doubt when he says he did not. regardless, i think a good solution in this situation is for shepard to publicly give credit to the photographer of the original image and then move on.

as for the question of what constitutes enough of a differentiation, you have to take into consideration the context of how the work is presented, and in this case i think the source and shepard’s image are worlds apart. hopefully the legal heads can talk enough technicality to argue that the image was sufficiently modified, but ultimately i think we can see the artist’s honest intent.


Wouter Synhaeve says:

February 6, 2009 at 2:21 am

If you would know the history of Shephard, than you would know that he originally used the photo of Obey the giant. But the circus that owned the giant got to Shephard and said he could’nt use the photo, but he was allowed to redraw the figure.

So actually there is no case with Obey the giant, because he has permissions for that one.


Daniel Carvalho says:

February 6, 2009 at 3:00 am

Jared, no need to swing your dick around. Jame’s was knocking on your comment as it didn’t add anything to the topic and primarily, inferred that the debate was unnecessary.

Interesting link though :P


Joshua Vaughan says:

February 6, 2009 at 3:11 am

Personally the image is a great bit of iconography and it is an important emblem of our past election cycle for the entire world. Further the fundamental reason it is so effective is THE DESIGN. You post just the photo, it’s a good photo, but it’s just a photo and easy to get lost in the noise. You can say the design is textbook, it’s just vectorized, it’s just whatever, it’s just Shepard Fairey’s work that made it a powerful piece of Propaganda. Now here is where everything else is going to get hamstrung, It’s a public domain image and I really think the AP is going to have a hell of a time trying to make this case.
Rogers v. Koons is an easier case to understand because of the clear EXACT reuse of the source media and the clearly noted and high price that the sculpture was sold for. Also the flimsiness of the defense resting on parody and the Koons own admissions of plagarism are going what ultimately hamstrung him.
Personally I don’t think we need to be so gung ho about stringing people up over this stuff. I sincerely hope that Shepard wins and we can start restoring a bit more sanity to our increasingly convoluted and muddled copyright policies.


Schroeder says:

February 6, 2009 at 3:12 am

we, the design literate, love our cake…we love eating as well…

props to shep for making the most iconic (debatable) image of 2008, but if you’re a man of his prominence, you must know that your actions will provoke others if you use their work…if i were to use someones photo, without permission or attribution (“i found it on google” doesn’t exactly hold water in court…i can find any logo on there too but good luck using that in another form without infringement), on a national campaign and the person i ripped off was then made aware of this, legal retaliation would ensue i’m sure…no matter what medium…

bottom line is everyone loves free money, especially an organization that is hurt more and more every time a royalty-free photo is published through someone other than THEM *cough* AP *cough*

HOWEVER, if i were a graffiti artist who made a statement on a wall somewhere (shep, somehow, appears to still see his work in this light) or never accepted any kind of payment for ANYTHING related to the piece, there may be a case where no rights were infringed upon

shep obviously embraces his status in the design/artist community; as soon as you realize your own worth, you’d better acknowledge what the repercussions of your actions might be and be willing to accept the consequences

either way, as a designer i’m very interested in how this case turns out


Leo Utskot says:

February 6, 2009 at 3:36 am

I had a run-in with Fairey’s people a while back when I sent him an email asking if it was ok to make some posters for my company loosely based on some of his posters (just to hang on the walls of the office, not to sell). I was redoing the art (fist shape) from scratch, tracing some of the elements, tweaking them, adding other elements, changing the colors, etc in order to bring the work within what I considered to be fairuse.

I got an mail back from the Obey legal dept. telling me that NO, I wasn’t allowed to do it and that they would send lawyers after me if I did do it.

Unfortunately we cannot allow you to use our illustration. The reason
is because the illustration you want to used was used as a logo for our
clothing company which also is used on our tee shirts and there are
some copyright and trademark issues for the usage. We are flattered but
we would not feel comfortable with it, plus we own all copyrights and
trademarks internationally for all of Shepard’s illustrations and
graphic design work. Thanks for asking!

So I guess what goes around, comes around. I don’t agree with the AP, but at the same time I’m a little pissed off that Fairey is trying to take the high road now that it’s convenient for him, especially when he claims that he didn’t make money off it, which he obviously did by getting huge exposure and selling more of his work.


Catalin says:

February 6, 2009 at 4:41 am

The bottom line is that without the image the illustration was not possible. Now matter how much he changed it the fact remains that it’s built on that…
when you build a house you pay for the bricks even if you only see the paint….


sean patrick says:

February 6, 2009 at 4:50 am

exposure isnt the same as making money off of a single piece…..
i think the ap is looking around seeing most of their publishers disappearing and going “is there anyone around that we can sue for a large sum of cash? oh defining art is a hard thing to do, lets go after that!” at that point, a few men in expensive suits got out of their eames executive chairs and decided to sue an artist for making thought provoking art. i hope fairey beats the shit out of them, possibly making a precedent for any artist to do whatever they please, using the world around them to create a new piece.

most staff photographers used to be artists and now seem to be digital monkeys, leaving much to be desired when it comes to composition, content. look through the google/life catalog to see what i mean…


mdoane says:

February 6, 2009 at 4:59 am

His claim of not making any money is false. What he means is that he gave it all back to the campaign. So he donated all of it. Which, as far as I know, isn’t the same in a court room. The AP will likely lose this one. Fair use should protect Fairey, but I do believe some credit should go to the photographer. And, it seems that the AP may not even own the image. More here….


Dayton says:

February 6, 2009 at 5:12 am

“does vecotrizing and coloring an image go far enough to differentiate the artistic product from the source?”


You’re missing the point. Sheppard may have vectored the image, but he didn’t ask for permission.

He’s been getting away with plagiarism for years:

So I think it’s about time that somebody confronted him. He got what he deserved.

By the way, your post made me wonder which images of children and birds you vectored for your Obama poster. What were the original images? Just curious.


steve says:

February 6, 2009 at 6:03 am

did andy warhol ever get sued by campbells? im not drawing exact parallels here but come one, if this image wasn’t so succesful, the AP wouldn’t care one bit, they just want a piece of his action. sad.


steve says:

February 6, 2009 at 6:04 am

did andy warhol ever get sued by campbells? im not drawing exact parallels here but come on, if this image wasn’t so successful, the AP wouldn’t care one bit, they just want a piece of his action. sad.


Philip says:

February 6, 2009 at 6:37 am

I think the argument is more about whether or not it was ethical. It’s a complicated case I think. I definitely believe it was unethical on Fairey’s part to not mention the original photographer.


Digitalshep says:

February 6, 2009 at 6:39 am

Well I’ve always thought that Shepard Fairey was wrong for not divulging credit for the originals of his artwork…see this post as everyone else has posted as well

That being said, I do believe IN THIS CASE that it’s a far enough adaptation that it is legal..if it were me I’d still give credit where credit is due…but what’s the rule, they always say 10 – 30% difference means no plagerism, not that there is an exact equation but in most cases I’d say that’s true. But who am I?


RandyPan says:

February 6, 2009 at 6:49 am

Just from the amount of postings and from the few I’ve read already, this indicates how hot a topic this legal case will make for us graphic artists.

No matter what your personal opinions about Shepard Fairey may be, this case goes farther than that and could ultimately shape how graphic designers work.

I think Fairey should definitely give credit to the photographer and the original source for the photo, but I also think it is fair game to use photography as the basis of your artwork. I also find it hard to believe that there was no profit involved in this case. Actually money may not have exchanged hands, but there is not arguing the immense exposure that this image has brought the artist.


RandyPan says:

February 6, 2009 at 6:55 am

I agree with most of the other readers that Fairey should give credit where it’s due for etiquette and for prosperity.

What is the difference between vectorizing an image from a photograph and say painting a canvas from a photo?


Keith Rondinelli says:

February 6, 2009 at 7:09 am

Fairey really is a plagiarist, and a hack. I think the fact that he’s as successful as he is is testament to the cannibalistic nature of our culture. If Fairey wasn’t a “designer” he’d be a movie studio exec picking through the ashes of the past 30 years of film trying to find a movie to “reimagine”. I actually never liked his work, even before I found out that some of his most iconic images where stolen whole hog from others’ work. The work is all dated NYC street attitude and psuedo-revolutionary crap. He’s essentially taken the aesthetic and iconography of socialism and made a killing off of it. Capitalism for you.


Josh says:

February 6, 2009 at 7:15 am

He technically re-drew the image. Therefore, it is technically HIS work no matter where he got the inspiration (or exact image reference). That shouldn’t be illegal. If I plant a tree and someone paints a picture of it, does that give me the right to sue them b/c it was my tree? Okay, that might be a little extreme, but ya’ll get my drift!


sean patrick says:

February 6, 2009 at 7:37 am

keith, i respectfully disagree. art can be different from design. if this was a site rebranding or something i would agree, but art can and should be whatever the artist/society wants it to be, free of all restrictions, legal and moral included. the same cant be said for design, where it needs to meet the standards of what is considered best for a entity. (business, individual, label, etc). fairey is an artist, not a creative director or graphic designer.

p.s. i see that we are kind of neighbors.. i work down on state st.


jacob says:

February 6, 2009 at 7:45 am

First, we alll need to study up on what the term appropriation means…

Also, as mentioned above, Fairey’s claim of ‘not making money’ is due to the fact that all proceeds were donated to the Obama campaign.

I’m curious to know how many of you are going to let out a sigh of relief when Fairey sends out a press release saying that the photographer who took the original source image is X, and credit is due for his photography skills.

What good does that do to anyone, other than get that photog a few interviews?

If artists/designers can’t mock, mimic or appropriate the visual items we see in our everyday lives, what sort of culture do we create? Art is and/or can be meant as a critique of our culture and of our lives. Appropriation is just one outlet for that.


Brian says:

February 6, 2009 at 7:50 am

I think the artist should have sought permission to use the image, and the photographer should have been given credit. Had my own photograph been used by another designer in this way, and they made a ton of money from my image, I would be a little bent about it.

And regarding the point about the image being modified… well, yes, the image was certainly modified, but it wasn’t really changed all that much. Despite the new colors and the vectorization, he just about literally traced the original photo without much change at all. It’s a perfect match. To me, this is stealing. It would have been so easy to simply ask for permission. Stupid.


sean patrick says:

February 6, 2009 at 7:57 am

brian, if you were the photog, when would of you acted? the first time you saw it, or after the fact, when it was hanging in museums? plus the idea of needing to modify it to a certain degree is silly, who decides the amount? do they have a term limit? are they the same that decide which people to sue for the RIAA? if so, im stopping 3rd grade art class when it comes to collage day…
jacob hit it right on the head in his last paragraph.
art is art, it makes you think…


John Dilworth says:

February 6, 2009 at 8:16 am

This case is very interesting, I hope that it never goes to court because my gut feeling is that whatever decision would be made would be wrong, and it would set a negative precedent regardless of which way the verdict turned out. We’ll end up without any protection for our own work, or we’ll have to pay a royalty to every thing we ever include in our own work.

As for the Associated Press, I think they have a good argument. Technically, Fairey’s work is a reproduction of the photo. It is customized with color, but it is essentially a reproduction. I’m guessing it isn’t that easy to get close up picture of Presidential Candidates. As a business based on getting photos of current events and building a library of photos of the now popular President, the AP wants to protect their investment. The gallery that represents Fairey seemed to be concerned about it, and even contacted the photographer and identified the source for their exhibit.

My guess is that this will get settled out of court, Fairey, or the Obama campaign will end up paying some kind of licensing fee or royalties on duplication of the images and that will be that. If it does go to court.

The best part of this whole thing, however, is that the photo was shot during a lunch where Obama was sitting next to George Clooney.

There’s some good legal commentary on The Art Law Blog:


d says:

February 6, 2009 at 8:59 am

That’s funny… The NY Post just this week had an article where they toured Russel Simmon’s NY pad and one of the things he shows off is a commissioned Fairey painting of the same obama image:

so I guess he commissioned Fairey to make him a painting but didn’t pay him?

This is but one example. He totally got paid in all kinds of ways. I’m not arguing the fair use thing one way or another but he’s being less than forthcoming.


Chaz says:

February 6, 2009 at 9:08 am

Fact of the matter is, without this photograph there would have been no”iconic” HOPE poster…or he simply would have found another photographer’s image to trace. That is not originality. It is not an original piece. He took someone else’s work without permission.

I’ll give him the benefit of the doubt when he says that he did not make any money directly off the image, but you know he’s made a large sum of money simply as a result of all the press he’s received (more people buying his prints, paying to see his shows featuring the Obama image, selling Obey clothing, etc.)…


frank says:

February 6, 2009 at 9:32 am

The funny thing is that the Obama poster kind of temporarily redeemed Fairey in my eyes but then this happens. At least the poster has some sort of positive message to it, unlike the majority of his work which just co-opts iconic imagery from revolutionary and leftist movements and turns them into generic corporate skate brand lifestyle wallpaper.

When I see a Fairey poster pasted up in the city, I don’t think of some graffiti or “street artist” doing a unique piece of work to get a little piece of fame in their neighborhood and personalize their impersonal urban environment. I see it for what it is. Another corporation littering the landscape with advertising messages.

It’s always blown my mind that people will accept the Obey crap and yet complain about all of the other ways that advertising encroaches on our lives (ads on shopping cart handles or whatever).



February 6, 2009 at 9:39 am

Just cuz he didn’t make money off of it, doesn’t make what he did right. When you want to use someone else’s work, you don’t just take it without saying a word. What part of his fucked-up plagiarising brain doesn’t get this?

No matter how talented Shep is, I personally have no respect for him and OBEY if he’s the type of artist who thinks he can take people’s work and remain quiet about it.


Pants says:

February 6, 2009 at 9:44 am

Catalin and Chaz,

How should Obama get paid? Without HIM there wouldn’t be a photo OR shepard Fairey’s image. Hell if his parents and ancestors were around spread em some money too because without them Obama wouldn’t be here for anyone to photograph. There are too many ways to interpret ‘fair’ use. It’s pretty much BS. Snapping a photo of someone is hardly ‘original’ or ‘creative’.


TJ says:

February 6, 2009 at 9:52 am

Fairey didn’t use the image IN the poster, he used it as a REFERENCE to make a completely different image. The photo isn’t manipulated, distorted, or appears as any part of the final image. I think it’s wrong to demand compensation from an artist for using your image only as a reference. For using the actual image in the final piece, sure…sue all you like, those pixels belong to you. But if the pixels aren’t yours, don’t get all fussy.



February 6, 2009 at 9:59 am


You need to get over your obsession with Obama and learn to see this case for what it is.


scott lowe says:

February 6, 2009 at 10:04 am

If you change the image so that no piece of the new one could be confused for the original, i think that cannot be copy write infringement. Fairey did not just colorize or run a filter on the image, he redrew it.


Jacob says:

February 6, 2009 at 10:06 am

wow. I would’ve expected readers of a great art and design blog like this to be a little less clueless. Good thing opinions on internet comment boards don’t count for anything, and that EXPERTS in the field seem to unanimously agree that the AP has pretty much NO case:

There is no such thing as a completely original idea. Get over it. Art and design are evolutionary processes — i.e. reliant upon that which came before them.

The only reason I would be mad if I were the original photographer is for the realization that someone else had a better vision, execution, and implementation for their craft than myself. And way to complain months after the image surfaces and only when you realize the image is making it’s way into it’s place in history and prestigious institutions like the National Portrait Gallery.

If you think Shepard is in the wrong, you should quit reading this blog and actually try to do something creative for yourself. I challenge you to not appropriate previously-used visual language.


frank says:

February 6, 2009 at 10:07 am

It’s funny how Fairey gets a pass because he’s seen as an underground street art dude. What if it were the other way around? How about if another clothing brand took a photograph from Scott’s blog, traced it and put it on t-shirts without permission? You would all be up in arms.

Anyone defending Fairey is basically saying that artists shouldn’t have any copyright protection at all. What if the photographer is not an Obama supporter? If I were a professional photographer who took a picture of McCain, and his campaign traced the image, and paired it with a message that I found offensive, I would be pissed!



February 6, 2009 at 10:24 am

I’m still wondering how such a talented artist never wants to credit the people whose work he used.


Wayman says:

February 6, 2009 at 10:35 am

Fair use.

Andy Warhol painted a Brillo box and the original graphic artist he copied never made a dime. That’s because he created a package design and Warhol created an “Art” piece.

We’re a sample an remix culture. Sheperd probably made a boat load of money on it but that’s because his poster hit a public nerve that the photograph never did. The AP is bottom feeding on this to make some money. The photographer deserves credit, a “Thank You for the inspiration” and that’s it.


Mike says:

February 6, 2009 at 11:16 am

If I made any piece of art of Obama it would have to be based of a photo of some kind because I’ve never seen him in person. Was Obama supposed to pose for Shep? Nice but doubtful. I make art out of stuff “sampled” from Google images all the time. If its changed enough it’s fair use. His poster was changed enough.


NAVIS says:

February 6, 2009 at 11:34 am

I used to really like Shepard. But the more I get to know the guy, the less I appreciate his work. I’m all for being inspired by others but when you’re of Shepard’s status and can find the exact source to a lot of his “original” work… I feel a bit cheated.

I do think the photographer should receive acknowledgment but I don’t think Shepard should be sued. Give credit where credit is blatantly due that’s all.


Fedaykin528e says:

February 6, 2009 at 12:14 pm

It is a tough call. I agree with Wayman above, if you get this technical about usage rights, the artist is the one who gets burned. It would be a totally different story if the image was left nearly unprocessed. A side note in history: AP Photo credit in public works would probably suffice.

Completely separate culturally, but I believe the photographer who took the iconic image of Che Guevara hasn’t seen a penny either.


Matt says:

February 6, 2009 at 12:16 pm

He’ll just use some pictures of him in court against the ‘man’ and make more money off that print. That’s what he does. Uses pop images and creates a cultural or political twist. He changes the images he references enough to where the look and meaning change to create an all new piece.
That’s what the campaign was about right? Change?

Also, this was not his original Obama. This was the one he did strictly for the campaign. His original one is here and was given to the campaign, but originally done just because.


Glenn says:

February 6, 2009 at 12:28 pm

Yes! I think NAVIS nails exactly how I feel. Legally speaking, I imagine what Fairey has done is okay. However, while he may be well within his legal rights, I think his ethics are severely challenged, i.e. nonexistent. I find it disgusting that he’s based his entire (very lucrative) career on directly ripping of other artists with nary a peep towards crediting those artists. The occasional “inspriation” or sample is one thing, but it’s so pervasive throughout his “art” that it’s almost a joke. I don’t think he’s a criminal, he’s just a dick.


Daniel Carvalho says:

February 6, 2009 at 1:10 pm

I think Fairey is safe. I can imagine at some point Obama stepping in, or his campaign managers. I doubt they’ll let it slide and let the person responsible for Obama’s image be martyred.

AP better watch out, otherwise they going to witness Obama step through their front doors and agents cascading from behind him.

“Yeah, about that… you’re an enemy of the state”

Breaking News: A mysterious fire broke out…


d! says:

February 6, 2009 at 1:10 pm


does monet owe money to the haystacks? all you photo humpers need to chill!

unless his camera shoots on flat color and halftone lines. he is out of luck! an artist owes nothing to the photograph he draws inspiration from. even if he photo realistically traced it he still owes nothing. because A DRAWING is NOT a PHOTOGRAPH!

anybody but a photographer, because they have been jealous of traditional art years now. and its because they know deep down inside that they are wrong and that A DRAWING is NOT a PHOTOGRAPH!


Clint says:

February 6, 2009 at 1:47 pm

– This would be a completely different argument if the photographer who actually took the photo was suing shep. He’s not.

The AP is. the original photog does not even work for them anymore.

this is about money, not art. that photographer isn’t going to see a dime of the money if the AP wins this case. What are the chances of the people at AP who pushed this case being designers themselves? not likely. they smell a buck.


slofu says:

February 6, 2009 at 3:35 pm

Bottom line, AP has no case:

What are the damages?

Where’s the intent?

Without a doubt, though the composition is copied, the image is at least 30% different than the source of influence.

Would the photo have served the campaign as lucratively as did the ‘art’?

While it’s certainly earned Shepard mass media attention, did he profit directly from use of the ‘art’?

Regardless of my opinion of Shepard’s work, Obama, etc., AP’s “claim” is predicated on Greed alone.


EJ says:

February 6, 2009 at 4:37 pm

First of all, Im amazed that Fairey didn’t hire a photographer for this project. I mean it was for the, then, democratic presidential candidate and all.

And second, this is NOT the first time Fairey has been accused of plagiarism. There’s an entire article here:

which is dedicated to calling out Shepard Fairey as a plagiarist. Theres several examples in that article that are just inexcusable; he literally took this illustration from an old cuban poster, didn’t change a thing, slapped his logo on it and put it on a t-shirt. We have all stolen images before, but Fairey takes it to a whole new level.

I used to be a fan of Fairey. But after a while it just gets old. All of his work is very similar. Almost always uses the same color scheme and aesthetic for everything he does. He’s become a celebrity artist and many people seem to buy into his fraud. But I for one am over it.


frank says:

February 6, 2009 at 6:21 pm

“This would be a completely different argument if the photographer who actually took the photo was suing shep. He’s not.”

That’s totally irrelevant. The copyright was either infringed or it wasn’t. If the copyright doesn’t hold for the AP, then it’s certainly not going to hold for you and I either.

“What are the damages?”

The licensing fees that Fairey should have paid the photographer? I guess they could have negotiated a reasonable one time fee, but if Fairey loses, I would imagine they’re going to have to calculate the damages based on the highest probable per-copy royalty or something. I guess they would base it on the AP’s standard syndication prices.

“Where’s the intent?”

Huh? Fairey accidentally picked this image of Obama and accidentally traced it?

“Without a doubt, though the composition is copied, the image is at least 30% different than the source of influence.”

I’m no lawyer but I’ve always been under the impression that “changing something x%” is just a B.S. graphic designer fantasy. Legally, if something is recognizable, they can sue. That’s the standard for music sampling for example. Even the smallest snippet needs to be licensed no matter how much you slow it down, play it backwards, etc.

“While it’s certainly earned Shepard mass media attention, did he profit directly from use of the ‘art’?”

Yes, clearly. Posters were sold. T-shirts were sold. For cash money. Just because he (supposedly) gave all of it away to the Obama campaign doesn’t get him off the hook!


Rent says:

February 6, 2009 at 7:51 pm

I think it’s funny how they are just now bringing it to the surface after it has made all this money..coincidence? obviously not


Daniel says:

February 6, 2009 at 9:47 pm

I’m really disillusioned with Fairey. I used to think he was about something, that his art made a brilliant, modern and necessary statement about the cheap forms of persuasion in advertising. And how it plays upon our herd instincts, tricking us emotionally into making decisions rather than appealing to our intellect. He was tweaking “Dear Leader” iconography used in dictatorships, and drawing a line from that to our omnipresent advertising campaigns. He was saying, or at least I thought he was saying, that it’s dangerous to communicate this way and that its a medium of control. And I thought it went without saying that it’s super loaded and dangerous to use a political leader’s face in that way.

And then he completely undercuts that message and does the Obama ad. Everybody thinks propaganda is okay when it’s their guy. I’ve listened to the interviews since with Fairey, hoping to hear a decent explanation. And more and more I’m convinced there’s nothing there with that guy – or rather that is art isn’t as deep or subversive as he lets people think it is. The Obama ad creeps me out for the same reasons that murals of the Ayatollah do.

Having said that, I have mixed feelings about the fair use question. Fairey has definitely profited from the Obama ad. If he was in it for the cause, and not his career, he would have use real street artist techniques and remained anonymous. As it is, he’s on a full-blown self-promotional campaign.

However, I don’t see where the photographer’s creativity is represented in his graphic. Let me explain. Let’s say that Fairey had been watching Obama on CSPAN and taped it on his DVR. Then say he did a freeze frame of Obama and composed his graphic from that still. I doubt that anybody would be worked up over the fact that he appropriated CSPAN’s video camera operator. And that’s because CSPAN video coverage is generally considered to be transparent, and is not about composition. If Fairey had worked from a screen grab of video, the only form of expression he’d be copying would be the one on Obama’s face. And that is what I think has happened with the AP piece. What makes a photograph original is its composition, not the subject. Once Fairey manipulated the photograph to the degree he did, nothing remained except for Obama’s expression. I don’t think it’s fair to say that the AP photographer owns the rights to Obama’s expression in perpetuity. The same would not be the same if, say, Annie Leibovitz, had gotten Obama in a room and prepared an environment, and posed her subject in such a way, that the photo she ended up with was as if she had sculpted the material in front of her lens to create something from her own mind.

Think of iconic composed portraits. John Lennon on the NY roof, for instance. That photo was a one of a kind, and if you vectorized it, you’d still see the composition and the work of the photographer. But in the case of a political figure on the campaign trail, the candidate is being shot sometimes by dozens of camerapeople at the same time. What if the AP photo had been shot by a handful of different cameras at the same time, all capturing the same expression, the same backdrop? Would that change the issue. This brings us to the issue of why the AP is suing and not the photographer. It’s as if the AP is acknowledging that it’s not the composition that is exclusive, but the fact that the AP published it first.

This blog rules. Look at the general decency (even when arguing) and thoughtfulness going on.


Scott says:

February 7, 2009 at 12:56 am

Wow, a lot of great arguments in here, I appreciate everyone voicing their opinions. I guess I see it from a sort of skewed perspective considering the fact that I employ similar “image acquisition models” in my own work (thought I would use a euphemism instead of “stealing photos”). I have always been aware of what I was doing, but I never felt that taking a photo of a girl from a 1960’s insurance ad and turning it into what amounts to a painting was going to step on anyone’s toes (see: Tycho – Past is Prologue cover). But I suppose that’s a little different than using the work of Cuban revolutionary artists who are themselves poster artists.

I agree with you, I too have become somewhat disillusioned with Shepard Fairey, but only as an idealogue, not as a graphic artist. If you strip away all context and history from his work, to me, it still stands as an example of brilliant and beautiful graphic design. But he has always represented himself as more than just a designer, I think he wants the public to view him as an agitator, a dissenter, a revolutionary. He has used his fame as a platform for his political views so I think in that respect it is fair to hold him to his ideals. If you create beautiful imagery solely for the sake of creating something beautiful it’s a whole other ballgame. I guess the point is, I appreciate his work in a visual context only, I don’t see it as something greater than that or something more culturally or historically significant than just quality graphic design. But that’s just a matter of opinion of course.

As for the AP image, I guess I feel personally threatened by the idea that someone could be sued for using and image in this manner. To me, the image he created is something new and something artistically valuable. BUT, he should have contacted the photographer immediately and got permission, this would have been a very simple task. This is a very poignant issue for me right now as I am in a very similar situation with the cover for my next single. The cover is based on a photograph, I cut out the photo so it is just a vector silhouette, but it is central to the image and composition. I see this as a collaboration between myself and the photographer and as such I contacted him very early on in the design process. He granted me permission and I’ll credit him in the sleeve. It seems like if you’re just up front from the get go people will do their best to work with you, so it just begs the question why would anyone in Fairey’s position opt not to go that route from the start? I can imagine there are a lot of details we are missing on this, but overall, it just seems like an obvious course of action. To be fair, the image started out as an unofficial project, Fairey created it on his own because of something he believed in, it was only after he had posted it up and some other organizations had promoted it that the campaign approached him to create an official version. He didn’t have access to obama to have photos taken or anything like that. The fact that it’s hanging in the portrait gallery now has nothing to do with it’s origins, this wasn’t commissioned by the white house or something. Given that fact it’s perhaps a bit more understandable, but given his past history with fast and loose, uncredited appropriations, I can see how it could appear more sinister. When one person exhibits a pattern of behavior like this consistently over time, you have to wonder if there is some sort of fundamental ethical flaw at work (I know, I know, glass houses…).

But in general, I think a lot of people give him a hard time because of his success. I mean look around you, look at all the designers coming up, everybody’s jacking something or other, it’s the nature of the game and it’s the nature of the times we live in. Fairey has transcended the design and street art scenes into something wholly different and because of this his work is put under a microscope. I am not defending his actions, but I do believe he’s being held to a different standard.

At any rate, when you ascend to the level that Fairey has, people will either love you or hate you. But being a divisive character like that just means that people, for good or bad, are paying attention to what you are doing and it seems like that’s exactly what he set out for in the first place.


Daniel says:

February 7, 2009 at 8:20 am

I feel the same, that Fairey is still a great graphic designer, even if he’s not the revolutionary he might like to be painted as. I think my disillusionment was as much about what I put into his work than anything else. I was let down when he made the Obama Hope campaign image because it invalidated all of the philosophy that I had attributed to his work. Who knows if that philosophy was ever intentional on his part.

If I had to guess, I would say the reason he didn’t get permission for the photo is that, for all his mainstream success, his methodology hasn’t changed. He’s still a punk street artist at heart. And punk street artists don’t get permission. It wouldn’t be subversive if they did, and I think that Fairey still thinks he’s being subversive, even when he’s supporting something as popular and palatable as the Democratic candidate for president. Most of the glowing personal news features on Fairey that have come out recently describe somebody who never leaves the house without stickers, who still has poster glue on his hands and who wears a Clash T-shirt (maybe that’s him playing up that image for the press’s sake). And that’s cool when someone can hold onto the original spirit of whatever lit the fire under their ass in the first place.

But all of this also makes it seem like Fairey’s punk ethic was never about anything more than not wanting to follow the rules. Cops suck. Dictators suck. Politicians suck – until we’re approaching 40 and have mainstreamed our lifestyles enough that somebody like Obama seems like an upstart candidate.

And that’s what a lot of so-called punk/anarchist art looks like in retrospect – hollow of any clear ideas. I interviewed the owner of Noir Leather – a “subversive” bondage gear type shop in Royal Oak – for a story earlier this year and when he talked about catching the punk fire it was Billy Idol’s multiple wristbands that had inflamed his imagination, not any new social doctrine.

So yeah, I agree with what you said, that people are holding him to a higher standard because of his success. But I also think that he has gone along with it, and been happy to play the part they wrote for him. Now that his profile has blown up, his art really does stand for something. Just not something good. I think that Fairey’s art now represents the vague, cloudy ethos of theft culture – that we don’t, AND SHOULDN’T, have to pay for anything anymore if we can just take it. The kind of attitude that feels everything should be free, and gets all self-righteous about it, but can’t really tell you why.

Anyway, this is a total tangent. Your response just got me thinking.


frank says:

February 7, 2009 at 9:06 am

“And then he completely undercuts that message and does the Obama ad.”

For me, he undercut his message as soon as he started a clothing company and became a corporate advertiser himself. It even changed the context of his early “Andre the giant has a posse” stickers to suddenly being just some kind of long term, guerilla marketing buildup for an eventual brand launch.

As for the tracing issue, I think there’s some kind of pirate code or honor among thieves that we follow: i.e. steal from non-artists. Legally, it’s all wrong but if I need to trace a bird for example, I’m going to try to find some snapshot that an amateur took which happens to have a bird in the background. I’m certainly not going to use a pro photograph of a bird from a stock photo site where another creative artist is trying to sell their work.


Colin says:

February 7, 2009 at 11:31 am

[sarcasm]I think we should go back and retroactively sue Warhol for all his art too.[/sarcasm]

In a perfect world, yes Fairley should have credited the photographer; however in our litigious world of overkill copyright where the deepest pockets wins, I don’t blame him for not mentioning the source since the copyright was owned by AP.

Also, if I was in Fairley’s shoes, I would have added a bit more variation in the form of the face so that this argument was more obviously specious. The fact that one can layer them over top like seen here throws this into a crazy gray area that has copyright lawyers drooling. Personally, I still think this is fair use, and I hope he wins or else this will set up a dangerous precedent for artists and illustrators everywhere (who all use reference).


PeeVee, Esq. says:

February 7, 2009 at 3:35 pm

I am a copyright attorney who specializes in art law and has worked with cultural appropriator artist, Negativland, on fair use issues in the past. A lot of people are posting wildly misinformed statements here, but the law and facts are, I believe, quite clear here. Fairey has a good fair use defense, but his image was commercial and he undeinably profitted from his use of an image that he knowingly and willfully stole off the Internet. This is illegal and he will very, very likely lose if this ever goes to court. My guess is that the parties will settle, primarily because Fairey does not want to get tagged with the reputation as being a hack thief. That said, I love his work and support his efforts. Bottom line: create your own work and don’t steal from others.


frank says:

February 7, 2009 at 4:09 pm

“Fairey has a good fair use defense,”

I don’t get the fair use angle. Doesn’t fair use usually have to be a parody or for educational purposes? Which is why the Negativland thing was so outrageous, since their work was obviously a parody, but I don’t see how he could argue that about the Obama poster!



February 7, 2009 at 4:49 pm

what a dumbass rebel. he gets himself into more trouble. all he had to do was ask and obey the law.


Scott Allen says:

February 8, 2009 at 1:20 pm

I thought the media was on Obamas’ side!
Whats the deal? haha
Apparently the photographer didn’t mind SF using the photo, but when the AP found out it was game time. Shepard threatens legal action when someone modifies his images (Baxter Orr) so why didn’t he ask permission to modify Mannie Garcia’s image?
Shepard’s poster for Obama is well done and I don’t want him to serve time, but consider and respect your resources…please!


Jose Espinoza says:

February 8, 2009 at 5:03 pm

I don’t think Shepard should be sued because, his work differs greatly from the source image. I think it’s sad that they are trying to do this so late in the game since this poster has been floating around for months, but also crediting the photographer that took the photo would be right as well. I hope he doesn’t get sued.


Arturo says:

February 8, 2009 at 9:49 pm

This case is a great opportunity to educate ourselves in the failures of copyright law. There seems to be plenty of agreement on the fair use claim by Shepard. But what still nags many is the lack of credit to the original photographer. Copyright law ignores the fact that plagiarism and illegal copying are separate things. Hence there is no punishment for plagiarism per se. If I buy a painting outright and then I sell it claiming authorship, there is no copyright violation. We do have laws against Slander because damage to reputations damage people themselves, in this case there was a small damage done to the reputation of the photographer. But current law does not provide relief since it ONLY cares about copyrights.

Here is a link that opened my eyes to how copyright law is outdated and also manipulated by corporations to their benefit:


a. rupp says:

February 8, 2009 at 9:58 pm

its merely a picture, just becuase the altered image is “now” popluar and most likely receiving money, that the source image photographer now wants what is his (his share of $$$)? the soucre image is just that, a source image….the person who took the source image did not create the piece of art, and therefore shouldnt be entitled to it (personally)…..althought one could argue otherwise…

all im saying is that, since the artist is most likely making a profit off of the image, “now” the source image photographer wants some of the money?, if the artist wasnt making any money than would the source image photographer still want the rights? i doubt it


Daniel Carvalho says:

February 9, 2009 at 2:11 am

@daniel. You’ve brought up a point that I was thinking about after my initial comment I posted here and I feel it’s really valid too. The fact the original photograph was editorial and not creative, which I think makes a fundamental difference. The only problem with that is, people can lie, and people have varied degrees of creativity. I’ve seen people take photos that they truly think was quite creative, but in my eyes was incredibly bland and straightforward. And it’s that opinion based judgment that doesn’t translate so well into a law. The lines are blurred.

With regards to the whole system challenging ethos of Shepard, I think we’ve got to give him space and realise that perhaps it was just an identity and not a way of life.


Daniel Carvalho says:

February 9, 2009 at 3:04 am


Likewise, especially the Ver Sacrum – Koloman Moser 1901 piece. Which was like an exact trace of a previous artwork, a previous artwork. That in particular scared me a lot about Shepard’s work and is something I definitely don’t think is cool in any way. Source’s and references are cool, but when you’re copying an existing creative work and composition, you’re basically just a monkey with a good eye for design. Although, don’t hear what I am not saying, Shepard definitely has skill.


Matt says:

February 9, 2009 at 3:35 pm

Since when did Shepard Fairy base his actions on the idea of law and ethics. C’mon people, there is nothing wrong with what SF did in this case. Think of how many people reused his image and profited, is he going after them? I think this is situation is sad and unnecessary.


texas says:

February 9, 2009 at 4:21 pm

the two are so different its hard to tell it was the image he used. his head looks much more angled in the original photo. if any money was made he definitely owes the photographer a portion. how i hate money.


Daniel says:

February 9, 2009 at 4:44 pm

Daniel C

The point I was trying to make was not really about the intent of the photographer, but about what is left over once the image has been appropriated. When you see the Fairey image, you see Fairey’s design work, manipulating an expression of Obama’s. There’s really nothing left of the original photograph, composition-wise, that could be said to be the intellectual property of the photographer. The only thing left of the photographer’s work that could be said to be original would be that he was in that place at that time.

It’s different than, say, a musician covering another musician’s song. In the cover version you can hear two-tiers of creativity. With Fairey’s, I only see one tier.


Daniel says:

February 9, 2009 at 4:57 pm

Also, I think the subject of the image needs to be considered. Obama is a public figure, so the idea of ownership here (possibly why the AP is fighting this battle and not the photographer) is one of access, not art. It’s a paparazzi ethic – the value being defended is a kind of exclusivity.

On the flip side, imagine that we were talking about one of those photographers who travels deep into rural areas, say in Appalachia or the American Southwest, and photographs “real” people, people of the land, capturing all of their wrinkles and wryness in metallic-looking film stock. That’s still a question of access, in a way. They did the work to capture the image, like hunting game. But more composition is involved here, and there is more artistry to selecting this kind of subject than there is in snapping shots of celebrities. In the first, the artist is deciding that the subject is interesting and worth presenting. In the second, we already think the subject is interesting and that’s what motivated the photograph.


Daniel says:

February 9, 2009 at 5:13 pm


I stopped reading that article the second he accused Fairey of having no real artistic talent. Ethical questions aside, Fairey is clearly a very talented graphic designer.


annie says:

February 10, 2009 at 3:00 am

tough one. it’s a great image, and, like fairey or not, he did a decent job promoting an image of ‘change’, which we were so in bloody need of. the off-kilter red white and blue was a nice touch. knowing this image was going to be on such a large-scale, visually, on the world stage, it would have behooved him to contact the photographer, (not AP) and considered this a collaboration, all in the spirit of the campaign’s message. personally, i’m not too enthusiastic about grabbing images off the web and using as reference in my illos. but they are altered significantly, and are usually minor pieces of reference material. that said, i recently had the overwhelming desire to do some portraits of musicians in a sort of ‘a scanner darkly’ style, and had no choice. ideally, i would love to shoot the artists myself, then illustrate, being the purist that i am.

in retrospect, i think fairey went about this all wrong. he should have either a) ‘collaborated’ with the photog ny at least acknowledging him/her or b) arranged with the obama camp to shoot the candidate himself. fairey’s name, reputation, and guerilla-style street art and street creds would have gotten him in the door.

if he didn’t make a dime, leave him be. if he did, he should share the wealth w/ the photographer…


Chris says:

February 10, 2009 at 6:11 am

Isn´t posting photographs of other people in your blog (or any other blog for this matter) kind of the same thing?
Do you ask all the authors for permisson?
Just a question…


Discuss says:

February 10, 2009 at 7:06 am

Shep should be aight, this issue can go back to the beginings of collage work, using outside source images to create a new work has been a a practice/ method for some time now….
I agree credit is due to the photographer who took the picture, but in essence, Shep did his thing, worked the image, and ran with it…
If this case goes against him, then what about the giant, what gave Shep way to the masses.?!@>?


J Mil says:

February 10, 2009 at 9:21 am

Man, that’s buhhhhllllshit. If he drew it with a pencil on a piece of paper, no one would’ve said anything. Whether you like Shep. Fairey or not, you can’t knock his hustle. I think it’s so telling of the times how people are scrambling for cash.

It’s sad, really. The AP gets enough attention. I bet a lawyer is behind all this.
I work as an artdirector for a alternative weekly, and I know that our artists would be guilty as hell if this thing goes through.

by night, I’m a musician. Take any of your favorite producers, Madlib for example. If he got pinched for every sample he touched, he’d be nonexistent. There is something to be said for people that can successfully append/appropriate something as nondescript as that photo.


Mister Nil says:

February 10, 2009 at 9:40 am

Here’s the thing. This guy has profited of of ripping off old poster designs from his very beginning (check old Muller-Brockman and Rodchenko work). He never prints any credit to the originals or acknowledges the fact that that is what he is doing. It was only a matter of time before his bad design ethics caught up with him. I’ve met the dude. Hung out in his studio space but I don’t really respect him anymore for his lack of respect for other’s work. Call him genuis, amazing designer, blah blah blah but the dude is more of a marketing whore than anything. An majority of the designs he doesn’t execute himself anymore. This one I am guessing he did but the guy is an enterprise now. He has turned into what he was rebelling against back at RISD. And I agree with some others, it should have been a collabo or he should have straight asked if he could use it. AP’s number isn’t that hard to find…


TRNYc says:

February 10, 2009 at 9:51 am

Shepard is a good guy. He’s a great artist, and just like the rest of us he’s not perfect. To go with what “J Mil says” about if he drew it with a pencil…. Shepard does his illustrations by hand then scans them in to be vectorized. I can’t tell you the method or I would have to kill myself, but this is no adobe illustrator copy, though it has some computerized elements in it. What he he does is fine art, then it’s digitized.


Schroeder says:

February 10, 2009 at 11:42 pm

2nd post on this topic but just had to interject one more time…

thanks for that post, i dont agree with all of what it says but jesus, i’d never done that much research into his work and that really gets to me that he has outright appropriated that much work from others…

of course that all plays into your 300 design level course in college about appropriation and “what is art” blah blah blah…

unfortunately its an argument that will never be fully resolved and the advent of digital media (since warhols time) only makes the hairs to be split even finer…

just incase you read all your comments ;) maybe an opportunity for a post about your own creative process on image usage in your own work…i know you touched on it in your response post but i would at least be interested in what your own process is in your work…i feel you are off the “major media” radar enough to get away with things like “image appropriation” yet in a position where as a professional you still need to clear things legally first…along the way im sure everyone has stolen SOMETHING for use in their design work, even though most dont do so for money, might make for an interesting topic

milton glaser’s thoughts on his work was (as usual) very thought provoking…

(see what i did there? i appropriated someone else’s post, let the berating begin!!)

all i know is that the more i research his work, the less i respect him as a designer…essh, its a slippery slope and something tells me that 10 years from now, the same debates that i had in history of design class about paula scher, peter saville, and andy w, will then include warhol…
there may never be a definitive answer but it will always make for some interesting debates on the subject


Freddy says:

February 14, 2009 at 2:34 pm

The first time I saw that Obama picture, it looked like it was based on a photograph. I just assumed whoever shot the photo would know about the poster. But seeing all this, I’m not surprised the Fairey guy is in hot water. Without the photographer (or his agent) knowing in advance (permission or collaboration etc), Fairey is effectively presenting it as his own work and letting people who see it assume that. That pisses me off, as I’ve had it done to myself as well. Having been on the receiving end of that I am very aware of producing stuff I know I can’t say is an “original” vision, and I am prepared to credit the influences. I’m not going to try and find justifications or say “everybody does it” to try and get around it. You may get this wrong, as an artist or designer, but that doesn’t mean you can’t realise why it might piss someone off and get it right.

Fairey’s style of work would seem to be more of a “genre”, graphic designs based off other images. So long as you know that’s what you’re looking at, fine. Otherwise he is stealing credit as well as the ideas.

I agree with PeeVee Esq: “Bottom line: create your own work and don’t steal from others.”


Mark says:

February 18, 2009 at 8:00 pm

The AP probably won’t be able to make anything stick, sadly, but I hope they’ll at least keep at it for long enough to put a good-sized dent in his bottom line.


Jason says:

February 26, 2009 at 4:46 pm

To me, it seems pretty clear that, like him or not, and like it or not, the HOPE poster falls squarely into fair use.


Mega says:

February 28, 2009 at 12:04 am

Shepard Fairey should be called out on stealing from minority artists and for twisting the message of other artists. I read articles that open my eyes to how horrible he is as a man. He does not allow artist to comment visually on his art but takes, takes, takes all he can from minority artists and photographers. If he thinks that fair use is creative freedom he should accept that artists will comment on his work visually and profit from it just as he does. NPR did not ask him about any of his contradictions and ICA did not either. He is a hypocrite and steals culture for his own profit and messages. He is a rightest selling a leftist message for his own fame and fortune. Support the ASL group in exposing this fraud. Please read and see what he does from the words of this man who has been critical of this artist,


Ale says:

March 1, 2009 at 7:43 pm

Why are artists so LAZY that they can produce art work with their own hands? Shepard Fairey’s public domain argument is just juvenile. Have we sunk so low that we not only call him an artist but a “visionary”


Dane Henas says:

October 17, 2009 at 7:40 pm

I know I’m a little late to this discussion, but as a graphic designer for over 25 years, I’ve borrowed, appropriated, sampled, from photos for logos, etc. But they’ve always been public domain–rather benign images. They all get simplified and minimized to line art beyond recognition. I’ve done projects that are homages or parody iconic images or posters, and if it’s fairly obscure I always credit the source even if it’s with an “apologies to…” in 6 point type at the bottom. Why doesn’t Shepard Fairey just do that right off the bat? His argument that he didn’t copy “that” photo but copied “this” photo just imploded, but since they were from the same photographer, I didn’t get what the difference was. Besides, the photo wasn’t that good to begin with–it makes Obama look like the troll from Lord of the Rings. I don’t really see anything new or innovative in any of his work, unlike Scott’s work, which is very original–unless Scott’s just better at covering his tracks. Fairey came off like an arrogant little twat in the media…


California Insurance Cases says:

November 8, 2010 at 1:19 pm

Everyone thinks that Fairey’s perjury during discovery was equivalent to him losing the case on the merits when he goes in front of the judge.

Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn’t really pertinent in fair use.

If anything kills his chances on the merits, it’ll be the “effect on the market” fair use factor. Even though I’d like to see the court end up finding fair use in the case, I think it’ll be an interesting discussion no matter how it turns out.