In her book, On Photography, Susan Sontag observed that, through the course of its history, photography had evolved from representing the environment to becoming part of the environment. In other words, it was no longer possible to imagine a world without photography, without images.

Sontag's insight is pertinent to the case of graphic artist Shepard Fairey, the guy who created the iconic Obama HOPE poster. Fairey is being sued by the Associated Press. An AP photographer named Mannie Garcia took the photograph of Obama that Fairey used as the basis for his poster which, as we know, wound up everywhere -- as t-shirts, stickers, you name it.

The AP claims the image is copyrighted and that it owns it. The AP wants Fairey to pay up.

But Fairey and his attorney, as well some other legal experts say no way. They claim that Fairey's use of the image falls under what is legally considered "fair use." They argue that Fairey has never attempted to profit off the use of his design. He donated the work to the Obama campaign and, in at least a couple of cases where the image was used for book covers, asked the publishers not to pay him, but to make a donation to the NEA.

We'll see how this case develops. The point here is to consider the chilling effect on contemporary art practice should a decision come down against Fairey.

Artists of all sorts have pursued their work in a way that would have made perfect sense to Susan Sontag. That is, they have considered the stuff of popular culture -- from photographs to video clips to music samples -- to be fair game for appropriation. And why not? We live in a world where human made sounds and images are as much a part of where we live as trees or rocks or living, breathing people.

It's a world where all you have to do is walk down a city street to see stuff that used to only be found in dreams.

It makes sense that, in order to represent our experience, we might choose to incorporate this stuff into works of art.

But if doing so risks a lawsuit, what then?

Imagine what it would do to your creative process if, every time you wanted, say, to incorporate a cat into your artwork, you had to pay a fee to Associated Cats.

But then, to bring things back to earth, how does it feel to be Mannie Garcia? I wonder: Is he thrilled? Or pissed?


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