 So, hello, everyone. It's been a while since we gathered in this format. To remind you, this is a composite session. You, the folks in the room, as far as you know, enrolled in the Harvard Law School class on copyright. In addition, there are over here 20 teaching fellows, some of whom are enrolled in the course, who will be monitoring the discussions of the event tonight by the other larger audience, which consists of the members of the Copyright X Online course. So welcome to everybody, and welcome also to those who will be watching the recording of this at some future date. The topic for this evening is appropriation art and its relationship to copyright. As all of you know by now, the aspiration of copyright, or one of the aspirations of copyright, is to facilitate the artistic enterprise to provide incentives for and rewards for artists, in the first instance, but also to ensure that their works are widely disseminated and, of increasing importance nowadays, reused. The phenomenon of appropriation art refers very broadly to one of the ways in which art is reused. This is not a new practice, but it is becoming an increasingly common and important one. So we have three speakers tonight who will address from quite different, I hope, complementary angles, the topic. They all happen to be good friends of mine and good friends of one another, because we were engaged in a piece of litigation involving this issue collectively. So the three speakers in order are first, Professor Merita Sturkin, who is chair of the Media Studies Department at NYU and who has studied and written extensively about many dimensions of cultural practice and art, movies, and so forth, but among her subjects is the history of appropriation art, and that's what she'll be speaking about. So she's going to talk for the first 15 minutes. Then Shepard Ferry, a graphic artist undoubtedly familiar by now to all of you, will be speaking about his own artistic practice and the ways in which he has encountered in his career copyright law. Then Jeff Stewart, a senior partner at the law firm John's Day, who has been a major player in copyright issues for a long time, will talk. Jeff was one of the two lead lawyers in the Eldred case, which most of you have read, and all of you know about. He worked with Larry Lessig in that setting, and he and I, along with some of his other partners, worked together in the matter involving Shepard Ferry. So collectively, these three presentations will take 45 minutes, and then we'll have, as we have done in the past, a general discussion to encourage you in the room and in the online audience to submit questions, which will be, as we practiced last time, posted on the screens behind us. And I will try my best to orchestrate a discussion provoked by those questions. So that's the plan for the evening. So let's welcome Arita Sturkin. Thank you. So I'm mic'd now. Is my mic on? I hope so. Yeah? Is it that you have a little light glowing? There. Do I? I don't know. Oh, OK. There you go. Is that better? OK. Thank you. I'm very happy to be here. I'm always happy to collaborate with Professor Fischer. And being a warm-up act for Shepard Ferry is kind of fun too. So I'm excited to participate in this rather extraordinary educational outreach experience. So I'm going to be very brief. I just want to say a few things about the history of the strategy of appropriation in art and talk just a tiny bit at the end about Shepard's Obama poster and why I think it's a particularly good example of why appropriation is an important artistic strategy. We have a pretty long history here of appropriation that really spans modern art and what we might call postmodern art. And as a technique, I think it's important for us to just sort of think of it in terms of a kind of borrowing of forms, of text, of images, and of styles, and of transforming of that in some way. So it's important that it's geared at retaining an aspect of the original thing borrowed in order to create a new meaning so that it forms a kind of second level of signification, in which the viewer will see both the thing appropriated and its incorporation into the second image. So part of what appropriation does is ask the viewer to see and make references in a kind of layered fashion. And I would make a distinction between appropriation and genre. We can see in genre, whether it's TV or film or art, a whole set of conventions and styles and formulas and formats that are repeated from one work to the next. But appropriation is really a deliberate, often powerful technique that signals its act to the viewer in order to perform a kind of cultural commentary, to critique social values, to connect to and borrow from historical, stylistic, and aesthetics, or to play off questions of authorship. So we would say then that meaning in art that is about the strategy of appropriation is intertextual, right? It intertextually incorporates the meaning of something else into the new work. So appropriation was a really kind of key strategy in the modern art canon, and in particular the avant-garde modern art canon as a means to question the very project of art itself. So early 20th century avant-garde, like Marcel Duchamp and other data artists, took ordinary objects and photographs and used them to comment on the status of art as well as to create political critique. So one of the earliest sort of originary examples is Marcel Duchamp's fountain, in which he took a common urinal and put it on a pedestal. That's created a lot of outrage because of its kind of trickster move, which was both to declare that anything could be art, but also to slyly suggest that art was at the level of the toilet. He referred to a lot of the works that he did like this, including a bicycle wheel, taking ordinary objects and putting them on pedestals as ready-made. The photo montages of many of the Berlin-based data artists in the 1920s deployed images from news magazines in combinations that suggested social commentary and contemporary culture, or in the case of John Hartfield, very explicit critique of the Nazi party. So here we can see a kind of tension with the collage form and the use of the photograph, the photograph retaining this power of a kind of trace of the real. So the data was a pretty short-lived movement, but it reached deep into the art practices of the 20th century. And we can see its legacies most directly in the work of Andy Warhol, who is arguably one of the most influential artists of modern art. In Warhol's pop origins, he incorporated brands and logos and consumer products into prints and paintings and transformed them with visual techniques, collage, repetition, et cetera. He produced a large number of works in the 1960s that used a bold screen printing technique to overlay color into photographic news images. There was a whole series like this one of car crashes, this one actually sold right before the financial meltdown for like 70 million at Sotheby's. He later became famous for his color screen printed portraits of famous people versus cultural icons such as Elvis and Marilyn Monroe, and then as vanity portraits. So there's a kind of serial repetition in these images that means to connote the repetitive quality of celebrity as a form of mass production. The repetition of images across his campuses evokes mass culture, consumerism, and the pleasures of abundance and excess. Like the data artists, Warhol deliberately pushed at the boundaries of the definition of art with now famous works such as his pile of brillo boxes and his paintings of Campbell's soup cans. And like other pop artists, his work contains a kind of affectionate embrace of commercial culture in its appropriation of it. So for instance, Roy Lichtenstein's work, which was about incorporating reworking comic strips, has this same kind of embrace of and critique of consumer and commercial culture. Abstract expressionist artists working in the 1960s and 1950s were also deploying lots of strategies of appropriation in order to intervene into the conventional canvas. In a number of works that were called Combines, Robert Rauschenberg incorporated objects such as a bed or a stuffed sheep, in this case, into paintings. And in Rauschenberg's work, we can also see the way in which he used photographs to convey a sense of mass culture and the news media within it. He created a series of silk screen prints after the death of John F. Kennedy. And we can see here how he reproduced and combined images overlapping them, painting over them with washes and color and doing this to comment on Kennedy's iconic status as a political figure who was defined by, in many ways, the news media. So there's a kind of graphic newsprint reproduction quality here that gives this work a sense of urgency and really implying kind of overall rush of information culture and the power of image reproduction to convey history. There are many other contemporary artists who deploy photographic images from the news media and there were. Barbara Kruger has this very signature style. It's made her quite famous. She does covers for news magazines in which she has photographs which then have a bold phrase over them often in a kind of red band across it. Other artists transform images by incorporating them into collages. Others use color but don't change the image form dramatically. Others break down the image to the point where they are barely recognizable, remaining but a trace. For others, appropriation can be a strategy of updating, remaking, parody. This is Pops surrealist Marion Peck's remake of Henri Horace Roland de la Porte's 18th century still life. So here she's sort of humorously commenting on the not so still life of 18th century symbolic forms. In the context of post-modern art strategies, appropriation goes a step further, one in which artists take on the very question of authorship itself. Artists Richard Prince, for instance, has become quite well known for re-photographing photographs and advertisements that he then claims as his own. His well-known series Cowboys reframed images from Marlboro cigarette ads. This is another variation. And among the group of appropriation artists that term sort of came into the vogue, into vogue around this particular group of artists, Sherry Levine has become known for a series of works in the 1990s that are emblematic of a kind of post-modern pilfering borrowing that questions ownership and authorship. She simply photographs famous images, frames them and displays them as her own. In after Weston, Levine re-photographed Edward Weston's famous image of his son, Neil. Her theft disrupts precisely because it's self-consciously presented as such rather than concealing its status as a copy. Her work is also a kind of defiant critique of the original and there's also, we can also see within the kind of feminist critique of the male artist as master. Such conceptual considerations also open the door to an endless layering of copies. Levine's work was in turn redone by Michael Mandemburg. He presented the images on two identical websites after WalkerEvans.com and after SherryLevine.com and he presented viewers with the opportunity to download the images and to get a certificate of authenticity in the process. So he just quite truly played a kind of game of one-upsmanship with Sherry Levine on the issue of reproduction. Coming full circle, Levine herself did her own version of one-upsmanship when she redid Duchamp's fountain only this time in bronze. So the strategy of appropriation is this, a key aspect of postmodern style and in a way that shifts a little bit more towards play and away from much of the use of appropriation in modern art as political critique. And postmodern style is characterized by a kind of meta-communication, by referencing, by quoting, by pastiche, which is really the borrowing and mixing of different styles from history and an integration of art with popular culture. Much postmodern art is defined by its derivative and appropriative quality, one that involves playing off of the codes of previous styles and of previous works of art. So importantly then, postmodern style is defined as has a new form of address that is about defining a knowing viewer. So it's in this context that I'd like to situate Shepard's Obama Hope poster because I think it demonstrates precisely what is important and powerful about the strategy of appropriation. Most pertinent to an interpretation of the poster is the way in which it creates meaning through referencing. For such an image, the reference to other images and styles and objects is a key part of the message rather than a simple and direct set of meanings. So we can situate this poster in the context of remix culture that proliferates today via the internet, via digital media, YouTube culture, the culture of the remake, the mashup and parody, et cetera. As I've noted, one of the key features of pastiche and postmodernism is referencing and quoting in that it defines a knowing viewer who is accustomed to reading images as references and citations, who recognizes the different styles of media and popular culture, who grew up watching Sesame Street, the ultimate referencing program and who probably get their news from John Stewart. So every element of the fairy Obama poster signals a reference. The screen printing style is evocative of the political urgency of the Bolsheviks adjaprop posters of the 1920s. It's not inherent to the production of the image. It's added as effect. The screening of color into black and white forms, references warhol, the use of the photographs, signals, news, culture, and so on. The colors of the image signal, but do not replicate the red, white, and blue of American patriotism. The white is a little bit off-white. The blue is light, et cetera. So it plays with the codes of the flag while deliberately not reproducing them. So the image plays with the idea of a political poster while it simultaneously functions as a political poster. This image play, replete with irony, appropriation, and cultural reference is increasingly common in art and popular culture. But I think it's important to note that it constituted a new aesthetic for American political discourse when the Hope poster emerged as a key image of the 2008 campaign. The poster's style became the source of an enormous number of knockoffs that continue to this day. It was then acquired by the Smithsonian for the National Portrait Gallery. And I think it's safe to say at the moment that it was acquired by the Smithsonian that it had indicated a dramatic shift in the traditional, normally quite kitsch aesthetic of American patriotic culture. This is a style that speaks to a knowing viewer, a knowing citizen, a style in which appropriation is a key part of the vocabulary. Thank you. You're up. I'll turn myself off then. Do you have a mic? Thank you. So I guess a lot of this is gonna be redundant because we didn't compare notes and I feel quite validated that a lot of my slides are from the same practitioners that you chose. So thanks for that. I guess it'll allow me to be a little more expeditious. But I'm Shepard Ferry. I'm an artist who was born in 1970. The age of mechanical reproduction, photography and I have been making art through the introduction of the internet and all the tools that that's provided. So in a lot of ways I feel like I'm working with the tools and the media that are part of my life that makes sense to me in a very both a practical way and a philosophical way. And I think artists have used the current tools to expedite and improve their art making from the beginning of time. So once someone figured out the pinhole camera, capturing scenes and transferring the proportions correctly to a canvas was something that was done once the photograph was invented. A lot of people don't know but people immediately began utilizing photographs as references to work from rather than having to sit with a model who was often fidgety. And capture what they want to capture but with their own artistic spin put on it. You can see Toluse La Trek, Gauguin. I think a lot of people have this notion that these are people who woke up from a dream with a vision and epiphany and put on their beret and got an easel out and started painting. And that's how art works. For most people that create art they know that it really doesn't work that way. There's a lot of development by imitating people's techniques that they admire that have come before them, finding their own voice through that. But there's a lot of building upon what's already been achieved in art history and the history of visual culture in general. Here we go. The Duchamp, DaVinci, and I mean this is, first of all, let me talk a little bit about my belief in how appropriation or pre-existing material works with copyright. I mean I definitely believe that the ability to communicate with a wide audience is a lot of times based on how universally understood the reference points are. So utilizing images that are relatable can be one of the most important ways to make your message understood to a broad audience. So in the case of this Duchamp, if the idea was to challenge the status quo in art and push avant-garde ideas, if you wanted to be irreverent towards the status quo what would be the most potent symbol to be irreverent toward? Maybe the Mona Lisa. And within the copyright discussion of does using something pre-existing hurt the ability of the original thing to still be appealing or saleable? I think in the case of this Duchamp piece, even if Duchamp had made millions of postcards of his Mona Lisa with the goatee and mustache, it'd be very unlikely that the same person that loved the Mona Lisa as a painting would buy the Duchamp postcard. It's a very different intent, very different audience. I actually like both, so I might be the exception, but anyway, Warhol, I think that the great thing about Warhol is that he tried to democratize art by using relatable subject matter and he made transformations in terms of color, in terms of his selections. He didn't just choose any picture of Marilyn Monroe, he chose the one that he thought would make the best art piece that I think is a valid and valuable decision in his process. He's presenting it in a different context. It's all the subtle sophisticated things that I think he did to transform the work that give it its new and unique value. You know, I think that the idea of quoting somehow in art, it seems less valid to people than it does, say, in writing. A lot of times people make references in literature to other writing, but then they add something new and I think that the same thing needs to be considered completely valid within art, but I think that the new creation can't just, it can't just usurp the value of the original, it has to add its own unique value. So I'm very opposed to bootlegging or I believe in copyright to protect people from an identical verbatim copy that would just take the market for the creation that they've made. If the idea of copyright is to support the progress of science and the useful arts, people need to be encouraged to create because they have the ability to make some sort of revenue from what they've created. And then it also needs to, I think, encourage people to feel like they can be a part of the cultural dialogue by creating things that build upon pre-existing material. That's the evolution of culture, that's the evolution of technology, that's the evolution of language. Limiting that I think is potentially very harmful to the evolution of things. I've ripped off of Warhol with some of my own work. The left piece Andre Warhol was more, I was making the sticker of Andre the Giant, which I was putting everywhere and so it's about repetition. Warhol's work about repetition. The suit can piece with a ripped label, the street art that I was doing was very ephemeral in nature. So my piece there is riffing off of the idea that both of Warhol's work and the way the labels ripped of the ephemeral nature of street art. Roy Lichtenstein, he was using comic book cells and looking at the reductive techniques of comic book reproduction and simplification and commenting on a very, you could call it accessible or lowbrow sort of vernacular, but he was placing it in galleries. So you could say he was talking about the democratization of this kind of visual communication, but also that maybe in a different context that people would see a value in something they would normally take for granted. I think there's a few different things weaving together that have value and the context of his new presentation has value. These are some of my pieces. This is one of my pieces that riffs off of Lichtenstein and my piece is really about how the way that pop art, democratized art, street art has pushed it even further because it's about taking it outside of the gallery context and putting it right in front of people where there's no cost of admission. But it is definitely built upon pop art. And there's the left panel on these two top images is saying, oh, Lichtenstein basically plagiarized these things. Look at the reference and look what he did. Well, I just combined wow and pop and made pal but then added, or it's empowering doing street art. Anyway, but I think that my piece was the no pun intended power of it is really dependent on understanding the pop art reference. And so it's not that I'm too lazy to make my own illustration. I'm actually a decent illustrator. It's that the potency of the piece I think is largely dependent on understanding the concepts of what it's referencing. You know, this is people have been and still are working from photographs. That's Richter. You know, I want to get into fair use. And once again, I believe in copyright. I pay for music. I want people who are making something that I'm using verbatim like a song to be compensated for it. People who remix a song, I might pay for what they do because I see value in what they do even if they're not paying the person that made the song in the first place. You know, a lot of, there's a lot of gray area in copyright. And you know, I think a lot of it comes down to what my conscience, where my conscience leads me, what I think I should pay for, what I should license versus what I think is a very legitimate transformation on my part to make something new. And the problem I think with copyright law as it exists now is that it is consistently being redefined in favor of corporate interests. And you know, I'd like to see more latitude for the broader public interest to be creative and participate in the cultural dialogue that the more people creating, participating in the creation of culture rather than just consuming culture, the richer and more democratic the culture is, the better our society is. So fair use. Now here's, yes, like I said, Barbara Krueger, you know, we're all on the same page, I guess. I was very inspired by Barbara Krueger, but Barbara Krueger uses appropriation, but she's recontextualizing her images with new, with new text and you know, frequently I think she could find any other, any number of images that would satisfy what she would like to convey with the text, but she decides on one and it's someone's image. And so virtually everything she does could potentially be seen as a copyright infringement, but she's making a new and I think valuable statement without she's recontextualizing the image with the text. So all of these things I think are fair use. This was a campaign I did attacking Coca-Cola in the mid-90s when they created a soda that was designed to capitalize on the slacker appeal of grunge and where the normal soda strategy was to dazzle and over promise that they'd done demographic studies that suggested that the slacker generation really just wants something that seems to under promise and under state and they went about it in a way that I found really offensive so I made fun of it and I took here in Boston which is one of the cities that were test marketing. I made posters that fit in the subway slots over the okay soda posters and I went and changed them, but had I not been directly referencing their imagery with my imagery, the campaign would have been virtually meaningless. It needed to comment on the thing that it was attacking directly. It needed to incorporate relatable imagery. This I think as juvenile as my image is or you may think it is, it was very cathartic for me at the time. I think that this is a good example where if someone says, well, fair use, it's hard to define why not just license the image just to be safe. I doubt that George Bush's team or the photographer's team would have wanted to license the image to me for this use even if I had tried to license it. There's the cost of licensing that's a barrier and then there's the ability of the person the copyright holder to say I don't want to license it for that and my image really was designed to say that this is the official presidential portrait of Bush. There's always the official one to say that I want to, I want to critique that official presidential portrait to be as irreverent as possible on my part was important to me and there was no better image for me to do that with than with the most familiar and sort of most important image of Bush in terms of it trying to symbolize and validate his presidency which I didn't agree with, was so valid. Once again, my concept, the power of my concept is largely dependent on the reference image and understanding the reference image but not completely dependent on it. I think you can get that an explosion in Iraq set up like a postcard that it's maybe not the best place to go take a vacation but if you understand it as a reference to Yellowstone, this what's seen as sort of a sacred national park, beautiful and then you look at what we're doing in Iraq, I think that the statement is that much more jarring. So yeah, I would argue that both more conceptually than aesthetically my piece is transformative and in fact, if it were to transformative visually, if you didn't understand the reference to the postcard then that would be a problem for the strength of the piece. Yeah, this piece, sometimes I get an idea seeing an image, sometimes I have an idea and then I go and I look for the reference image that's gonna help me achieve that idea. This was one where I saw this reference image on the left and I had taken a photograph in Brooklyn looking into Manhattan with the skyline of Manhattan and some factories and a sunset but you could also see some pollution and I knew immediately what image I wanted to create and the picturesque couple looking over saying, look at God's gift to us with this beautiful landscape. Juck's opposed with the pollution and this tagline, to me, I felt made a powerful statement and the original was some sort of magazine illustration from the 50s, a completely different purpose from what I was doing but I think when one sees the couple and they see the style that 50s, the America that's apple pie and wholesome that maybe never existed, they understand what the connotation of that kind of image is and it makes my statement of these sunsets are to die for, I think that much more powerful in terms of the naivete of what we're doing to our environment and our country. The piece on the left, originally that couple was holding a baby and it's pretty self-explanatory. Not a massive transformation aesthetically but a very big transformation conceptually. On the right, I shot this photo of my wife but I wanted to bring up this piece because the only thing that would potentially be copyright infringement in this is the sun newspaper. But the sun newspaper I think is, I don't wanna swear but okay so it's a total piece of expletive so but if you're addressing the concept of global warming and misinformation or even I'd maybe say disinformation in the media, the sun is a good example both literally and with the name symbolically so I felt like it was important to use it. They might not like that use but I think that this is a legitimate critique and I guess a lot of people know that parody falls under fair use but I would argue that social commentary should fall under fair use because parody is seen as a form of social commentary but I don't know if maybe one would call this parody but once again difficult to define and I'd rather see more latitude for social commentary. So the factors of fair use are the purpose and the character of the use including whether the use is of commercial nature or for non-profit or educational purposes. I'm commercializing much of my work but I also consider it for the purpose of social commentary, educational purpose, maybe not in the way that the fair use statute is meant to intend the idea of educational use but I also use the money I make from my art to support organizations I believe in that a lot of times are related to the content of the message of my pieces and it pays for me to make materials that I can give away or put up on the street. The second factor of fair use is the nature of the copyrighted work and so if it's a very creative copyrighted work you could argue maybe that it's less likely to be fair use if the original piece is of documentary nature rather than creative nature and photographs can be creative, art pieces, videos and sometimes things are just to document reality say for the news and I'll relate to some of these things based on all the concepts of the Obama case shortly. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Now in the case of the Duchamp Mona Lisa almost the entire piece is used but I think that it would be very difficult not to disagree that Duchamp's piece is fair use because the intention is so different. The concept is so different. So there are conceptual and aesthetic variables to fair use and then lastly the effect of the use upon the potential market or the value of the copyrighted work. So like I said before I don't think that the market for Mona Lisa postcards was probably harmed by what Duchamp did. Of course one could argue that what Duchamp was trying to convey conceptually could create an entire paradigm shift in the art world that would mean that more traditional work would fall out of favor but I think it would be very difficult to make the argument that that one piece specifically directly competed with or harmed the market of Mona Lisa postcard. So now we're getting to the Obama Wow and I'm almost out of time here. This is a post called a scent affair. When I created the Hope poster I knew that I needed to convey Obama with a sense of vision and leadership. He wasn't that established as a candidate so I was looking for images of Obama that would to work as references that would convey this feeling specifically. So you know that's the original photograph that's my illustration. I illustrated the image by first manipulating this in Photoshop to change some of the values, some of the lighting situations. Then I illustrated it by hand, scanned my illustration back into the computer and then further manipulated it with the color and the typography rotating angles. In the hand illustration I attempted to stylize and idealize the image to make it very much an idealized image that demonstrated a flattering affection for Obama. This is a Reuters photo that they thought I worked from reversed it's actually not the correct photo but it shows that there were a lot of photos out there that I could have worked from. These are several that have a similar feel. Now the problem is any photograph that I worked from was gonna be owned by someone. It would be under copyright by someone. So for me it was just a matter of choosing a photo that worked well enough for my purposes. And there were many out there but I chose the one I chose and began to work from that. But of course once the poster became famous then anyone who could say well it was from this photograph if they were to argue in favor of the copyright holder would say well this poster is so great because this photo is so great but I actually think that I maybe could have achieved the same thing with any number of photographs. Now in terms of my belief about copyright is I think it's great for people to riff off of what I do and there's a lot of that. I've sent cease and desist to people for creating identical copies of things I do but I've never tried to stop any of this sort of work that riffs off works of mine. And here you get people riffing off my obey project and the whole poster. But of course those are very transformative. I would never have a problem with that. And in fact I don't have a problem with any of these. This top row they all use the Obama illustration but they use it in a way that has new social commentary so I have no problem with any of these uses at all. I think that in fact they just give more power to the original because the original becomes the universal reference point for all these things and as an artist I find a lot of value in that because it constantly relates back to the image and message that I was trying to convey. So someone that never saw what I did that they see this then they find oh that's what that was about. So to me it's just making the conversation more inclusive and always referencing back to what I do. And there's just a few more here. But yeah these are the basic ideas behind what I do. I wanna make sure there's nothing really important. I know we're out of time but oh one of the last things I wanted to say was that the Associated Press they sued me and it was a pretty brutal lawsuit and I understand that their revenue stream is suffering because people are using their photographs and their news stories and their videos verbatim but what I did was not an accurate example of what their real problem is. It was just a very high profile thing that they could create a case around to generate a deterrent publicly. But they actually use fair use in their news gathering all the time. When you're commenting on things that are happening in the real world you have to be able to use material from the real world whether you're a news agency or you're an artist. So they have fair use exception for all the copyrighted material that's in their news gathering because they can't report the news if they have to clear all of that. Artists who want to comment on things happening in the real world need to be able to use references from the real world so that people understand what they're talking about and the more universal the communication can be I think the better. So these are things that are always gonna be challenging to figure out but like I said I think that the ability to facilitate commentary and dialogue is extremely important and I'd like to I'd rather see that broaden than I'd rather not even for my own the sake of my own creations have to police existing works when I could be making new works and have to worry about whether anything that I do to protect my own intellectual property would then be seen as reinforcing people becoming more and more litigious about that sort of thing then potentially hindering me from being able to make the social commentary I want to make in my work later. As an artist I'd rather have more latitude for commentary but businesses don't always feel the same way. Do I need to give you? I'm all set, I think I'm all set. Yeah, that's what that. Hi, I'm Jeff Stewart. I'm a partner of the law firm of Jones Day and I was so pleased earlier this evening to see Charlie Nessen here. He was my evidence professor and my favorite professor in law school. It's because of Charlie, I became a trial lawyer and I was telling him that if he'd taught tax maybe I'd be a tax lawyer, but here I am. He, Charlie was involved in the internet way back. I mean in the early nineties and I remember being in a meeting with him this building hadn't been built yet and he was saying, you know, the internet's gonna change education. One of these days, we're gonna be teaching courses around the world with the internet. And I thought, yeah, sure, Charlie. Well, here we are. Larry Lessig in one of his books dedicated it to you saying you're always ahead of your time and never is there better proof of that than our presence here together now. I'm a trial lawyer, as I said. My job is really to focus on the practicalities of a case. How to write a complaint, how to get your discovery, how to navigate it through the court system. And this has a lot of twists and turns to what I won't bore you with, but essentially, whenever you have a case you have a choice of legal theories and you have a choice of factual theories that you can choose among. And you test these with mock juries and with jury consultants and with focus groups just like you're selling soap, you're gonna sell your case. And although we didn't get so far in this case to do it, a lot of the work I did was of that nature. Put a different way, what I do for a living, a lot of it is just empiricism, pure and simple. We were involved in this because of the invitation from Terry, because of a procedural snafu in the case, I don't think we have time to go into. It was originally brought by the Stanford Fair Use Project. They withdrew, Terry came into the case, he invited me to join him, both Terry and me and my firm did this on a pro bono basis. And the reason we did was we saw the immediacy and importance of the legal issues of this case, which I think to this day are really unparalleled. We wish it could have gone to trial, but for most cases, subtle in this case was really no exception to it. The legal theories involved or appropriation are complicated. And one reason for it is that a single statute, the outlines of which were set forth decades and decades ago governs all form of art. So if you're talking about fair use, the same general language applies, whether you're talking poetry or music or graphic art, and it's the job of the courts and sometimes terribly put upon group of jurors to take those very vague terms and apply them. There's a general rule among lawyers, the more vague something is, the harder it is and more expensive it is to deal with it. And imagine, for example, if you were driving down the road and one sign said speed limit 25 and the other said speed limit, be reasonable at all times and we'll let you know if we agree and you can imagine how life would be. Well, the fair use standards are not too different really other than that. The procedure of the case is simple. It was brought in February of 2009, initially Shepard brought it because he'd been threatened by the Associated Press. Very quickly the Associated Press counterclaimed for massive damages and for all intents and purposes it turned into a pretty normal case in the sense that you had a big company on one side and individual on the other. What made it abnormal was that Shepard's lawyers were lawyers who as often as not don't represent individuals in cases like this. So it was sort of a role reversal much to the astonishment of the Associated Press, I should say. The theories of the case, really we had three. It began as a fair use case and Shepard already outlined the four fair use factors and I'll return to them in a minute. However, Terry developed two other theories which I will get into that I think in their own way were almost more interesting. Let me go into fair use first and I don't have a graphic of what those standards are. Shepard already actually covered them but there are four factors, they're non-exclusive. So you gotta look at all four. There's actually an addition you can maybe consider some other factors and our theories were pushing towards an additional factor, namely first amendment interest which we thought was enormous in this case without spending too much time on it. Remember that if you want to graphically comment upon the President of the United States, good luck. You can call him up and say I don't wish to violate the copyright, President Obama, will you come over to my house for a few days so I can paint your portrait? Or you can say I don't wanna infringe on anyone's copyright Mr. President, may I bring my camera into the Oval Office and may I take your picture? Well, good luck that is never going to happen. You're not going to be allowed to get near the President of the United States. The only people who are members of the White House press pool who are licensed to take pictures, every one of their pictures is copyrighted, every one of those people works for a major news organization. So if you believe that commenting upon the image of the President is something we ought to be able to do, you are going to run right into a copyright issue even when dealing with something so fundamental as political speech of that nature. And of course, Shepard ran into that because he needed a reference work for President Obama. He found it, but like virtually any other picture that you don't take for yourself, you're going to run into this copyright issue. Earlier today, one of the teaching assistants asked an excellent question. The White House does offer publicly available official portraits of the President. You can get such official portraits of a lot of politicians. However, many artists would like to work from something other than the favorable official portrait of someone. Indeed, if you're a critical of someone, maybe you want a picture that's not particularly flattering. You don't want the stock image that comes from the White House press office, although that wasn't the particular issue here. Shepard's process of illustration, I think you know, and I'm going to tie them into the fair use factors here. He took the photo, and I'm sorry, Shepard, I'm going to mangle your process here, but I'll do the best I can. He took out the background. He took out the detail. He took out the color. He rounded out the edges. He added in additional details, and he ended up with the portrait that he had. So let's go to the four fair use factors, and I will be quick. Number one is the purpose and the character of the use. Here, Mandy Garcia, who took the photo is a photo journalist. He was required by the rules of the Associated Press and by the professional rules that govern press photographers to create an absolutely accurate, non-editorialized, non-emphatic factually neutral photo for the purpose of disseminating the news. Shepard's purpose was overtly intentionally political. It was not intended to be fair or balanced, and it had nothing to do with the news. It was a piece of political commentary. So when it came to fair use factor number one, we said that is really apples and oranges. We should prevail on that hands down. Now, the Associated Press, unfortunately, gets to tell its side of the story in these cases, and we'll get to that in a minute. The second is the nature of the copyrighted work. And by the way, that is the statutory standard. And you can scratch your head saying, what does that mean? Nature of the work? Is it big? Is it small? Is it yellow? What do you mean nature of the work? And remember, when you have to argue that you don't go before a panel of necessarily wise judges, you could be talking to six randomly chosen bakery truck drivers. That's what your jury is. Most of you will be called for jury service sometime in your life, and almost all of you will be disqualified from the jury because you're too smart. Many lawyers want the dumbest jury they can find. The O.J. Simpson jury, for example, not a single one of those jurors subscribed to a newspaper. The ones who did were knocked off of it. So nonetheless, the nature of the work, the copyrighted work, the point was that that was news journalism with all the limitations we talked about at the left and Shepard's was overtly political. The next had to do the amount and substantial out of the portion taken in relation to the work as a whole. Obviously, our argument was, if you look at what was taken, it wasn't much more than the shape of the features of Barack Obama's face. There are arguments that there's some sort of subtle inner light and expression in it. We obviously disagreed with that. But our view was that not a heck of a lot was really taken. And finally, it had to do with the effect of the use upon the market for the original work. Here, it was quite pronounced and in our favor. The AP licensed the Garcia photo back and by the way, the Garcia photo had been taken years before when Obama was not even a presidential candidate. The cost of buying that from the AP website was about $120. Very few people bought it. After it became known that Shepard had used it as his reference work, the price went up to $1,000. So he had this strange reversal as to that factor. So that was our fair use argument. The AP's counter to it was with factor one that Shepard actually had a commercial purpose in mind, or at least developed one because as things went on, quite a bit of money was paid to him by various sources. And therefore, it was more commercial than non-commercial and that perhaps he had used this as a vehicle to increase his own profile as an artist, which over the years would lead to great profits for him and therefore it was indeed a commercial use by Shepard. They also focused on an incident of spoliation, which is destruction of evidence that had happened that we can talk about at some point as a sign of bad faith, which sometimes some courts think you could look at in that. They also argued that although the level of creativity in news journalism is low because it must be low, for that reason it has to be guarded all the more jealously and that what Shepard took was the essence of what a news journalist does. And they had other arguments too. Because I want to not burn up time, I'm going to move to our two other arguments and if there are questions we can circle back to these but I know there are probably people out there with questions, especially of Shepard. The second argument we had had to do with the three elements that a copyright plaintiff, and now the AP is the plaintiff because they're suing for money, must prove in order to state a prima facie case. And prima facie is a Latin word lawyers use because it keeps non-lawyers from practicing law. But what it really means is the things you got to prove or you'd never get out of the starting gate. And one of them had to do with the whether or not the expression being embodied in the copyrighted work was protected, in other words was it something that came from any kind of a true creative process. And this for us was the most fun part of the case. Had a really bright associate. We got the metadata from Manny Garcia's camera and from that we found that when he shot the photos, we had timers, we had it all set up. He had basically waited till opportune moments and simply held the button down on the camera. He did not wait for opportunities. He was shooting as fast as he could. He shot about 216 photos. I'm probably off by a few, over 90 minutes, but actually most of the 90 minutes he wasn't shooting at all. He had almost every possible automatic feature of the camera enabled. The only thing he was adjusting was the focus. So if you look at the Garcia photo, then you have to back out of it, such things as lighting and all the other things, a photographer and not me would know. The second thing we did was we got a photo of the room and paced out the room and photos before anything happened. We saw Garcia arrived early. Then a lot of other people came and it was a pack of these photographers which you always seem to get in Washington. So once Obama brown back in Clooney came, Garcia couldn't move. He was trapped. So the angle of his camera to Obama was not something he chose. And of course he didn't tell Obama how to hold his head either because he had no control over that. So in terms of the posture and pose of Obama, Garcia had zero contribution to that. And the fact we love the most, which actually AP never learned because we held it in our back of our mind, was before that photo was taken, they changed seats and Obama switched seats with brown back. So this wasn't that Garcia said, I'm gonna get in front of Obama. I'll bet he'll look up at a great angle and I'll get a picture. To the extent he was thinking that much, he was thinking I'm gonna sit in front of Senator Brownback. Maybe he'll look up and I'll get a great picture. So those elements of composition by Garcia were basically random. The lighting in the room was set by the National Press Club and we talked about everything else. And then of course, to the extent he had anything, it was expressive. He claimed he kinda got the essence of Obama, which I think he said because he had also sued Shepard although he later dropped out of the case. But basically you see Shepard took everything out of that photo except the shape of Obama's head. And that's a fact, which is not copyrightable. Finally, our last theory, and now we'll sit down, is called sent off air. It's a French word we use to keep non-lawyers from practicing copyright law. It means certain things have to be taken in a certain pose because there's no other way of doing it. And in noble and heroic political poses, this is a very well-known way of posing a politician. You saw in Shepard's presentation the very well-known portraits of Kennedy, but I'll actually show you what I was gonna do at trial. Take out your wallets, I mean it, take them out. Open them up, pull out a $5 bill if you've got one. What do you see? That's a three-quarters view. Do it with a $1 bill. What do you see? Do it with a $20 bill if you're wealthy. Anyhow, the point of it is that means of modeling, which is the three-quarters view, the gaze fixed into the distance, and the reduction of the politician to a statue is so standard it is on the currency of the United States. So that was our third argument. Now, we settle a case, and everyone's gonna wanna know, well, gee, if you had such a great case, why did you settle? And I won't spend too much time on it. Ideally, one would want to resolve a case like this on summary judgment, and that's, I don't know where everybody is in their procedural studies as lawyers or if you're not a lawyer. It means that the judge looks at the facts and says, well, we're gonna take all the facts, most favorable to, in this case, the AP, and notwithstanding that, Shepard wins. That is extremely important procedural part of the case because of the vagary of juries and because the enormous cost of a jury trial. Jury trials will run you $60,000 a day to try it. In this case, it was scheduled for about a two-and-one-half week trial. Judge Hellerstein in New York, a very intelligent man, announced he was not going to grant summary judgment of the case, meaning we knew we were faced with the vagaries of a jury. One thing jury research tends to show is that once you look with hindsight at the question whether someone copied the power of suggestion is enormous and as a result, it tends to disadvantage the artist. The other thing we didn't like about juries is we did have this problem of spoliation and there were a couple of places in the case where it would have been Shepard's word against somebody else and we didn't like how that might play. Then finally, the coup de grâce was, while we were talking about settlement, Judge Hellerstein said the more he thought about it, he wasn't even gonna let the co-defendant we had, which is a clothing manufacturer, even present a fair use argument which had strange results. It meant that there was going to be a trial with no fair use. If we won, that'd be great. If we lost, we would easily get that reversed and we'd have to have a second trial. So looking forward to two years of litigation at an enormous cost, we were able to actually settle on it in, I think, very favorable terms and did so, although to this day, I think all of us would love to have seen how the case would have eventuated had we been able to try it. Thank you very much, Terry. So, thanks very much. Two or three of you. I hope that you have questions. Seems extremely unlikely that this has settled all the issues in your minds. So as you know, I hope, we are going to be using two different screens. Great. One of which represents questions asked by the folks in the room and the other is questions that have been relayed to us from the edX audience curated by the teaching fellows who are overseeing their sections. So let's start here. So this is a question for Sheppard. A lot of people want to have asked. So, how do you reconcile, you're lifting an AP photograph for the Hope poster under fair use with your lawsuit against Baxter or for lifting your obeyed giant image for similar transformative artistic purposes? Well, this is one of those interesting situations where first of all, I didn't sue Baxter or but I sent him a cease and desist. But my cease and desist was not actually based on what I felt about and I regret it. I regret it because it diverged from my philosophy based on other variables that I had no easy recourse to solve. So to put it in a nutshell, Baxter or as someone who had engaged in some activities other than this thing that I found very distasteful that I'm not gonna go into. But not under copyright, but under trademark. Basically what he did was he took a trademarked image of mine and then just put a dust mask on it. And I made the mistake of sending him a cease and desist based on wanting to punish him for other things he was doing which I thought were in really, really poor taste. And they weren't necessarily having to do with me actually. But anyway, I just think that the guys, he's not cool with me, but the problem is I undermined my ability to look consistent in my practice with that and I regret that. I let my emotions get the better of me. But for the hundreds and hundreds of times that my images have been used in similar ways, I've actually never tried to prevent anyone other than Baxter or which I dropped that actually immediately because I realized it was an error. But Baxter or is actually pretty shrewd with PR and decided to leverage this to get attention for himself and to call me a hypocrite. And he was, I give him some credit for being very successful at that. But anyway, that is not my standard practice or my belief. So it's an unfortunate exception to my belief system. So that suggests more general question, at least to me. You began by pointing out that there was a confounding trademark issue in the start of that dispute. The reason why that seems worth spending a little bit of time on is that as most of the folks in the room know, a close cousin of the copyright system is the moral rights tradition, which has more oomph in Europe but still significant oomph in the United States as well. And there are two primary strands of the moral rights tradition. One is the right of integrity and the other is the right of attribution. Now, the right of integrity is very hard to reconcile with many of the cultural practices that Marita identified at the beginning because the folks in Europe in particular, not just Europe, Latin America and much of Africa subscribes to the same orientation, object to the reconfigurations that were central to many of your examples as disrespectful as threatening the personhood of the artist and so forth. So it's at least prima facie to pick up Jeff's line here. Impossible to preserve a strong conception of the right of integrity if one wants to create room for appropriation art. Now, come back to you, but there's this other strand of the moral rights tradition which is the right of attribution, which is the right to give credit where credit is due, right to be given credit when credit is due, but also to ask for anonymity if you don't want it. So preserving appropriate recognition of who is the author is this separate consideration, equally powerful, especially in Europe. If I get it right, combining your account of your attitude start fair use with the reference you just made to the trademark problem, you are not a supporter of the right of integrity but would be a supporter of the right of attribution, avoiding confusion concerning where stuff came from. Is that fair? Yeah, I do think that's fair, but it's also not difficult for me to demonstrate that I'm the creator of the image that Baxter was using. But one of the problems I've faced is my aims as an artist and the aims of some of the people that I work with who have a lot at stake in terms of their ability to make a living, sometimes they're in conflict. So when it comes to trademark, one of the reasons that I thought, well, I can teach Baxter or a lesson even though it doesn't follow what I believe in copyright is that my clothing licensees are constantly saying, there are all these things out there that violate your trademark, you need to pursue some of them or else you lose the right to protect your trademark. And that's an unfortunate, as I understand it, factor of trademark law, that if you trademark something in a category and you wanna be able to use this as your mark, you actually have to defend it when other people try to use it. And because you have to demonstrate that you are using it and that you want to protect that right to use it. Otherwise, your right to defend it erodes. So I actually saw this as punishing Baxter or for something unrelated and getting to solve the problem of where I usually resist any sort of trademark pursuit with my clothing licensees, satisfying them as well because they're constantly worried about things being bootlegged to trademark being infringed. So I'd rather, like I said before in my presentation, make new things than worry about policing old things. But I also do have a certain responsibility to the people that I work with who don't just make new things all the time. They rely on surviving based on the things I have already made. I would like to say something too. We also, I'm Shepherd's wife and business partner and I'm the one who spearheads a lot of policing what's going on with their trademark for our licensees. And we didn't understand with the Baxter or thing how it was parody, not Shepherd necessarily, but me and our partners. How is just putting a gas mask on the icon face of parody? We didn't understand it. It just seemed more like he was doing his own thing plus Shepherd had other insights as to this person. So that's something that I'm in charge of. I know it's a struggle for Shepherd as an artist, especially going through this, but that's what our other lawyers have told us is that we have to protect. We are in the business of running out and suing people. In fact, we've never sued anyone other than the AP. The AP. Great. Here's a question that I think has both a legal and a cultural dimension. So I'm gonna ask it first of Merida and then Jeff. It's the one on the right here with 10 votes. If postmodernism and appropriation are just defined by making references to a knowing viewer, how do we deal with appropriation where the referent is less well-known or obscure to take Jeff Coons and Blanchard Rogers, for example? Now that, if you're not familiar, Merida, you probably are. I know. This is the same piece. The puppies? Yes, the puppies is Rogers and Blanchard's, the women's legs that are combined with a collage. Well, I mean, I would say, just speaking from the perspective of cultural practices and appropriation cultural practices, that quite often we don't know what the reference is, but we know where reference is being made. So there's lots of degrees of knowingness that can be a part of the address of a particular kind of work. And I think we see this in children's culture all the time now. Children are growing up now looking at Pixar films that are constantly referencing things and they acquire this kind of double viewing, which I think is part of a kind of richness of culture. And I think these kinds of appropriations that we're seeing in the remakings and the sort of layering of that that Shepard is referring to, a lot of that is about a really powerful kind of richness of culture that I don't think that we want to have a chilling effect on, right? Now, in terms of a more legal context, or do you wanna follow up on that? Sure. Probably the most single important of the fair use factors is one element of the first factor. And that is the degree to which the challenged work is transformative of the reference work. And although courts go back and forth on the weight to give each factor and how to handle it, I think the consensus is that the amount of transformation is key. And so that really is, and I think this is a really terrific question, by the way, because to you say, well, who judges the amount of transformation? Now in a trial what you would do is you would have an expert witness like Marita who would say, this is what the reference is or this is why the reference is transformative and to put it then in the context of why the artist believes there's a transformation involved. It leads, though, to an open question, which is, so the expert witness says that, but what do you do when the other side comes back and says, well, that doesn't really answer anything of the 10,000 people who saw this, 14 understood it, and the rest just got the benefit of my copyrighted work being knocked off. I think would probably turn into a question of fact for the jury because a judge would probably leave it up to a jury to decide the transformative nature of it and the jury would have to take into account whether or not an expert or a person with great knowledge is representative of most of the viewers. So this is the image, the reference work for the first of the cases that you referred to and the premise of the question is that the Court of Appeals for the Second Circuit here counted against Jeff Jones that this image was not likely recognized. But I understand that your suggestion is that if you see this, even if you don't know this, you know it's coming from somewhere. You know that it's coming from some kind of sentimental, traditional image and that is, thank you. Very sorry for the folks in the outer world, chose my, let me just, with the relevant technologies. Okay, so to repeat, Rita, if I get it right, your suggestion is that even seeing this image, not knowing it came from this, you know it came from something, something of popular culture. So I think that's a really tricky question that if you look at the Coons, I mean, Coons, his style is about a kind of general referencing of pop stuff, right? And so I think it's not clear that it's referencing something in particular. I mean, a particular image as opposed to a particular style. Yeah, okay. All right, well, let's move on. Actually, let's do a old style question. You had it. I'm sorry, I meant to raise my hand. I asked the original question and. Great, can you follow up? Yes, I was really satisfied with Shepard's response. Actually, he seems very contrite and kind of understood that maybe. Well, I mean that like personally, I can understand that it was a piece of shit artwork that he didn't do much transformative, affected to yours, and I can understand you being upset about it, but then realizing when you're on the other side that maybe you don't want to create these legal norms. But then your wife responded with the idea that Noah was in parody and maybe he was pushing back on that a little bit and maybe that took away a little bit from your contretion. No, I would err on the side of even if I don't know what his intent is, thinking that it might be a parody just because I want similar latitude. But I actually didn't, the Baxter Orthing happened a full year before my Obama case, before I knew I'd be in hot water. So it wasn't an attempt to, I didn't drop my cease and desist based on fear that it would negatively impact my case with the AP. I dropped it just based on my own beliefs, you know, a year before that case even started and I would potentially run into the problem of being called a hypocrite in a very public forum. I just actually felt like I was doing it for the wrong reasons and that people wouldn't, they would only see the generalities of it, they wouldn't understand the specifics of my irritation with Baxter or which like I said, this is public so I'm not gonna go into all of it. But yeah, I think he definitely deserved what I did in way worse actually, but you know, but not for the potential consequence of it damaging people's perception of what I feel about copyright. So yeah, does that answer you? Yeah, no, that's satisfying. I think maybe sometimes when the artist speaks from south it comes across as, I mean I can understand the perspective as opposed to getting the perspective of a lawyer or a business partner who's obviously gonna feel more strongly about just your work being taken for business purposes, but I think you probably as an artist understand that you take those work all the time and it's something that you wanna allow in terms of just allowing art to continue in that form. Yeah, and sometimes I think that business and social commentary are not mutually exclusive. A lot of the things that I do with my work that involves social commentary also have a business component because aspects of what I wanna do, whether it's public murals or posters that I give away or charities I wanna donate to that have to do with a cause. The way I can fund those pursuits is by having a business component for the same image. So I need to feel like I'm upholding my own moral standards across the board there. So let's change gears a little bit here. I'm gonna pursue a question over here that seems founded on or takes as a point of departure. One of separate your themes. You emphasized repeatedly in your presentation the importance of an artist bringing something new, a different viewpoint, a different perspective, a different argument, a different message to an existing piece of either journalism or art in order to warrant legal freedom. And you also I think acknowledged that there are gonna be tricky questions of degree here. So unfortunately, for better or worse, taking this path does not eliminate altogether the vagueness that is notorious in the fair use doctrine and that Jeff and his remarks emphasized. So Andrew in that connection, I think perhaps putting a few words in this now it's a suggesting that it's hazardous or at least the Supreme Court has suggested that it's hazardous to make those questions of degree, turn on the value of the work or the value of the new artist's material. The slogan or the tagline used commonly in copyright arguments for the opposite position is aesthetic neutrality. We can't let the law judges in particular make judgments about quality of art. Is the position you advocate dangerous because it seems to invite maybe even require decision makers to make judgments about value? Yeah, I think maybe that's value is not the most precise term because it is hard to define. I think that there are a lot of things that reference and remix that are total garbage that probably ought to be allowed. So when I say value, that's of course very subjective. Sometimes I think making cats sing pop songs or things like that, maybe the only value is in entertainment. But these types of activities and creations that I think allow people to express themselves and develop some tools and techniques for making art that might ultimately lead to something that is recognized as having value. And even every one of the artists that Marita and I showed in our presentations who are by the art world basically considered important, valid. There are always arguments against that. There's always a degree of subjectivity. So I guess to be very, very basic, I'd say that if the new creation is not just taking away from the original creation by doing the exact same thing, then it has new value. A little bit, just without going too far afield, the pushback that you might get from the original creator is that the work, the new work might be something he or she would have done him or herself or have licensed someone also to do. And that's one piece, I guess. And the other is do you see any potential issue with the judge or jury trying to determine what is sort of socially beneficial? This is an artist stretching his or her legs and versus, oh, this is just schlock. Like who is this guy trying to make something? Well, I do see what you're talking about. And like I said before, I like, I'd err on the side of latitude for the public to be creative. Even if you'd argue that it's not all that creative. I personally have run into problems. Like right now I'm wearing an Andy Warhol banana velvet underground shirt. And I think that that's a really great collaboration between an artist and a band. And at one point, Jack Black's band, Tenacious D, basically took my obey logo and did obey the D with simplified portraits of Jack Black and Kyle, the other guy. And I wasn't that psyched on it. I didn't try to do anything legally, but I was thinking this silly thing that they're doing, that might mean that I don't get to do my collaboration with the velvet underground or whoever my version of the velvet underground is, because it's certainly not Tenacious D. So if you're listening, Jack Black, I'm sorry, I love you as an actor. But at the same time, I talked to a person at Sony that I knew that worked with the band and said, why didn't you come to me and ask me about this? Because you know me, you could have asked me. I know that you're involved in all these projects. You said, well, I thought you'd be flattered. And that was good enough for me. Human beings make mistakes. She could have reached out, but like I said, I'd rather err on the side of democratizing rather than narrowing people's abilities. D2, who is section D2? So a very well-regarded question from this section. Also directed to Shepherd is, everyone can recognize Da Vinci behind Duchamp, but Manny Garcia's contribution to the Hope poster was unknown and unacknowledged, right? Was he owed any explicit credit as a co-author? So Shepherd, this is primarily directed at you. You may, in the course of answering it, say something about how you selected and made use of that reference work. Sure. This is a complicated thing. I actually would have been happy to credit Manny Garcia. That wouldn't have necessarily meant I thought he deserved financial compensation, but I think it is always really nice to be acknowledged for your work, but I didn't know it was him. In fact, the reference that I worked from had no attribution, not to the AP, not to Manny Garcia. I found out after finding the same photograph online a little while later that it was an AP photo and did not find out that it was a Manny Garcia photo until the AP was threatening a lawsuit. And yeah, and Manny Garcia actually didn't know it was his photo, but he said that he was very familiar with the poster and he was an Obama supporter and loved the poster, but he did not realize it was based on his photograph. Now, when it comes to photography, I think there's several issues and once again, they're subject to interpretation. The nature of the original photo being a news photo, I did not think it had artistic intent and I don't think that I was building upon its artistic or lack of artistic intent. I felt that I was creating something, using that as reference material, but something that had a completely different purpose and was very transformative conceptually and therefore, I didn't need to pay for it, I didn't need to attribute it. Of course, I actually would have attributed it and at one point I said to myself, if this poster's become such a phenomenon, I should try to find the photographer, hopefully they're psyched on it because it became a phenomenon I wouldn't have expected. But when I have worked from photographs where I felt that I was building upon the creative intent aesthetically and conceptually of the photograph, I've licensed the photograph or collaborated with the photographer where I'm sharing revenue and they're consulted up front, they're happy with the collaboration. A lot of people have come to me and asked me to collaborate. Hey, I've got all these great photos, don't you wanna work from them? Because they know that it will generate money for them and a lot of great things have happened that way. Sometimes I say, well, what you're doing is great as a photograph but it won't work so well as a reference for me for what I do. But I just evaluate each case individually and of course, I respect other creatives. It's not that I wanna be disrespectful to other creatives but it is that I think that it's important for people not to feel that they are gonna have to feel reprisal in order to create or have to pay for licensing. This culture of permission that favors corporate interests I think is potentially very dangerous. A very good question, worth asking. Does exit through the gift shop legit or a mockumentary? It's legit. But when you have that many hours of footage and Banksy as a documentary filmmaker could construct an outline for what he would like to put across and then find the material to support that. So everything has a point of view. It's all factual but it is put across with Banksy's specific point of view. There are some things that are omitted but everything that's in it is factual. The only thing that I think was influenced by the fact that a documentary was being made was Terry, Mr. Brainwash's art show. He knew it would be the crescendo of the movie so even though Banksy was already trying to convey that Mr. Brainwash was obsessive, his obsessive tendencies were hyper stimulated by him knowing he would be the focal point of the end of the film just making Banksy's position that much easier to convey. I think so, I understand we're over time here and so by way of warning or promise, depending on your perspective, we're gonna have three more questions. Marita, here's one that could be directed to several of you but I'm gonna direct it to you. A questioner from the class asks, I feel part of the message of street art is disobedience, willfully breaking the law to promote changing it. Doesn't defending your working port with legal theories undermine that message? So this is pointedly addressed to Shepard but I wanna ask a preliminary question of view. Is this category appropriation art, relatively recent label too rough for some of the analytical purposes we're using here and in particular shouldn't we be dividing as a matter of analysis and perhaps legal policy, the folks like Warhol and the folks like Shepard? I mean I think there are probably a lot of subgroupings that we could come up with under this larger rubric which is speaking to some cultural practices and not necessarily in terms of legal implications. So there are lots of different intents at work and part of what I was trying to say is that sometimes the intent is very explicitly political, that you appropriate something and that appropriation allows you to craft a very political message precisely in how you're sort of resignifying something, right? Other times the appropriation might just be play and not really have any kind of deep political intent. At other times it's clearly about art and authorship and so there are lots of different strategies that we might see having some distinctions between them under that rubric, yeah. Okay, that seems strong but if you're willing, concentrate on one extra category in particular which is defiance and intentional illegality as a form of artistic practice. Is it a distinct thing and if it's a distinct thing does it suggest something different about the way copyright law should approach it? Well, I understand that question to be specifically about the question of street art and obviously the illegality of street art is less about copyright than it is about the sort of privatization and ownership of public space. So to me that is a very political act and I believe Chepard has talked about it in that way. So there is a very, very explicitly intent in the breaking of the law to show the way in which our so-called public space is not public. Okay, Chepard, do you want to pick up on the theme? Oh, is it off? No, it should be on. Should be on. Close, sir? Well, somebody that's in a Harvard class or taking a Harvard class online, I think this is a fairly one-dimensional question. I'm disappointed. But I just went to regular school. I think that this divides things into categories that are unhealthy because the real world doesn't work that way. You can question some aspects of law, the system, societal structures through street art, through any act of defiance. But for me anyway, I am a citizen with responsibilities to my fellow citizens. I respect the concept of community and that even though I love my freedom and my autonomy, if it harms other people's ability to pursue life the way they want to, then I need to, I think, reassess. So utilizing street art as one platform for sharing my ideas with people that is in some ways political because it is an act of defiance, the medium is the message. But it's just one way to democratize my work and I think that's reinforced by the act of defiance. But the act of defiance is not the sole message by any means. Jeff, here's a question that relates to one of the legal theories you addressed. So you described how in addition to the fair use argument, in the Hope-Poster case, we also were attacking the degree and perhaps the existence of copyright protection for the original photograph. So the general theme that lies behind that is that the fair use doctrine in the United States in particular has come over time to do a whole lot of work because it's the only safety valve. It's the only mechanism to loosen up the joints and that in turn is partly byproduct of the fact that everything is copyrighted now. So the standard of originality is so low and that combined with the absence of any formalities, post-burn convention, mean that everything's copyrighted. So if you're gonna create space for a variety of things, including appropriation art, you have to use fair use. So this questioner says, well, maybe we're taking the wrong tack here from A4. The question would be, should we be instead, at least as a policy matter, if not as a litigation matter, thinking more about withdrawing copyright protection from stuff with minimal creativity, including journalistic photos? Would that make more sense than fair use? I think it's a great question because this is one of the anomalies. By definition, good photojournalism should have almost no creativity. That's actually in the professional standards of news photography. So you then say, well, to do a good job at your job, dial back the creativity. They're simply there to record. In the end, of course, this would require statutory change and we can talk about Congress's unbelievable ineptitude and copyrighted at a different time. But as Mark Twain once said, don't ever pick a fight with a man who buys printer's ink by the barrel and you can just imagine how the news media would react to any statutory change. But to just go back to the merits of it, in all fairness, two news photographers, they have said, let's deal with the photographers, not the stock photo agencies or the wire services. They have said, well, you may not like the fact that I'm not particularly creative, but I work really hard at this and I deserve some protection because if you really applied the standard, as you say you want to, none of us, none of we news photographers would have any copyright protection at all. And so actually courts, I think, have extended this more as a matter of exigency than principle. What this probably really calls out for is some different copyright standard than fair use for works like that. But I'm not sure I'm in a position to say what that ought to be. Okay, last question for Shepard. Did copyright law influence your shift from Andre the Giant as a posse stickers to the Obey Giant series? No, it didn't because at the time I was making the Andre the Giant as a posse stickers, it was really just a, it began as an inside joke with a few friends and I never anticipated having to deal with copyright issue because I never anticipated it becoming something that would be well enough known for it to be a problem. I evolved the image from the Andre the Giant to the Obey iconography as a way to really just refine what I wanted to say as an artist. My work, even the original Andre sticker, though it was very silly, was sort of poking fun at the repetition of advertising images in public space and when I put my stickers around that were an alternative that, it seemed to be infuriating and mind-boggling to people who ironically seem to accept or embrace what I think is the most pervasive form of propaganda in America, advertising. And not that I've worked with commercial companies, I'm not trying to dismantle capitalism, I just, I think that you can exist within a capitalist society in a more educated way, a more analytical way and maybe protect yourself from some of the tools of manipulation and I in fact participate in what I critique both in the commercial work I've done over the years and my personal work, but my desire with the Obey campaign was to make my work more about the Orwellian side of advertising and propaganda in our society and put something out there that was less sort of da da silly like the Andre sticker and a little bit more direct and codifying something that I thought was sort of more existing in the ether as a sinister force, obedience, submission and confronting people with it directly and because I already had a sort of a cult following with the Andre image rather than starting with something brand new, I just evolved that to something that wasn't about a wrestler, it was about my own creation. Excellent, okay, thank you very much. It's been a wonderful session. Thank you.