Appropriation, part deux

img by shepard fairey

The case of the AP v. Shepard Fairey is still ongoing. I believe he will win it. His Hope poster is definitely not a didactic ripoff of the AP press photo. It is symbolic propaganda, which is starkly different than an AP photo for strictly news reporting. Fairey made no profit from it, the AP photographer’s exposure has skyrocketed thanks to being affiliated with the poster, and it’s hard to say whether or not a line has clearly been crossed. I think it is different enough from the precedent case of Jeff Koons v. Art Rogers, which is probably where a lot of the legally grey area originated from. Art in the digital age is practically built on appropriation. This is huge. The aftershocks of the verdict will shake the art world. You can read a lot more about it from Neon Tommy, who covers the issue rather nicely.

The article ends with a quote from Judge Alex Kosinski, during the White v. Samsung case:

Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”

Determining fair use is the main (legal) issue here, but the major takeaway of the fiasco is that nothing is truly original. Everything in this world of ours is built on the existing world of our ancestors. Originality is merely hiding the sources of influence and inspiration. The real ‘originality’ that we create, is really our reaction to it: modernism. Also, what’s interesting is that all of the pieces and parts that make up our original artwork are not original themselves.

Take a look at color, for example. We did not invent that. Centuries of color usage have built up a definite brand equity into each of the colors we use. Red, for example, signifies passion or boldness. Blue suggests calmness, moodiness, coolness. These connotations were created by our collective human existence. When we conscript a color for a design, we are tapping into these meanings semiotically. The people who championed these color connotations in the first place are not being credited, yet we are appropriating that equity for ourselves.  Illegal? Didn’t think so. Can’t copyright colors. There’s a whole lot more than just color though.

You see, there are just so many aspects to an artwork that one may be appropriating. Fairey took the composition, but he did not take the ambience, the detail, the lighting, the background, the style, the color, the context. In fact, it’s probably not even the composition, but rather the tilt of Obama’s head. How does that one small aspect being appropriated end up as full-fledged copyright infringement?

It doesn’t add up.

Fashion has been on this path for as long as it has been around. People say cardigans are all the rage now. Don’t they know that cardigans have come and gone probably dozens and dozens of times? Fashion just gets recycled every generation, over and over; it’s not the first time people started wearing military jackets as a trend, and so on. Why isn’t each new iteration considered a ripoff? It’s the same reason. Do these fashion designers even know who invented that style of military jacket in the first place? Hell no (well, actually the most-informed would). All they know is that people want those military jackets because they want to buy into the image, the brand equity, of the culture implied by these military jackets. That’s an orgy of appropriation all the way, and that party has been rocking for a long long time.

Fashion is more usually a gentle progression of revisited ideas.

- Bruce Oldfield

It’s a well-known fact that programmers and coders work better and learn faster when they can look at examples of working code, and appropriate modules to use in their own projects (evidenced by: dojotoolkit). It’s probably one of the top reasons why open-source is sparking a wildfire of prolificness throughout the internet. And the copy-paste-tweak method sure as hell beats starting from a blank slate – almost every web developer I know starts off with an xhtml template or equivalent. Larger projects almost mandate some sort of existing structure before work even begins. Why create it from scratch when there’s tons of examples to build off from? There are no copyright qualms in open-source, but the idea of building on top of works which came before still persists. It also lends credibility to the idea that furthering creativity and progression is dependent on allowing fair-use a little more slack.

A hundred years from now, the average person won’t even know who the AP photographer is. They might remember the Obama Hope poster. Then kids will create derivatives of the Hope poster. People will either commend them or lambast them for reflecting Shepard Fairey. It’ll be all about Fairey. Mannie Garcia? Who the hell is that?

I don’t see infringement, I see art history in the making.