It isn’t hard to understand why photographers want credit for their work. Most of us live and breathe our craft, and the best among us sacrifice much in pursuit of ever-better images. We envision. We direct. We create. We go days without sleep. And in the end, the art that results is ours, and we want credit for it.

So what happens when a well-known artist asks a photographer for permission to use their image for one of their art pieces, then fails to honor any of the license terms that the photographer sets forth?

My copyrighted image of cancer survivor Jessica Ikenberry struck a chord with pop artist Shepard Fairey, who contacted me about using it as the basis for an art piece to be auctioned off to benefit the Lance Armstrong Foundation. Long a fan of Armstrong’s book “It’s Not About the Bike,” and a cancer survivor myself, I of course was interested in contributing.

I had previously read a number of articles wherein Fairey discussed his opinions on “fair use” and “transformative works,” and was interested in the outcome of his then-still-pending lawsuit with the Associated Press (AP) regarding his then-disputed use of the Mannie Garcia image for his Obama “Hope” poster. Still, I was open to the discussion, and I told him via phone and email that he could use my image provided that he agreed to my very simple license terms. First, I wanted credit for my work, and second, I wanted the opportunity to photograph him with the art piece in his studio before it was shipped to auction.

He agreed to my terms verbally and in an email, then asked me for a B&W hi-res version of my image, which I provided. He also discussed a different crop of my image, as he thought the in-your-face nature of the entire image might garner less money at auction. I agreed, and he later sent me a mockup of what he was working on. I said, “Cool,” and waited for him to contact me about shooting the finished art piece.

Months later, without having been contacted by Fairey as promised, I found that the resulting “Jessica” art piece was prominently displayed in a traveling art exhibition called Stages 09, jointly produced by Nike and the Lance Armstrong Foundation, and then showing at a gallery in Paris, France. The “Jessica” piece was also featured prominently on the Stages 09 web site, the Lance Armstrong Foundation web site and the Nike web site. Further, a making-of video about the “Jessica” piece was featured on all three sites.

A friend went to the Paris gallery to check the signage and gallery brochure, and did not find any photo credit. I looked at the Stages 09, Lance Armstrong Foundation and Nike web sites, and did not find any photo credit. I watched the making-of video – a piece which centered around Jessica’s story and Fairey’s creation of the “Jessica” art piece – for which my image was the source material, and again did not find any photo credit (though Fairey did mention “the original photo”). Further, by the time I found out about its existence, the press release and making-of video had been copied to countless other web sites.

It became clear that I, as the creator of the original portrait, was not credited in any way nor as agreed. Interestingly, the person who photographed the “Jessica” art piece for the Stages 09 web site did receive credit.

I was not told that the piece would be used for anything other than an auction. I was not told about Nike’s involvement, nor about the traveling art exhibition (which ultimately was displayed in Paris, New York and Miami). I was not given the opportunity to go to the studio to shoot the piece. I was not credited in the documentation hanging next to the piece, nor in the show program. And I was not credited in the video made about the “Jessica” piece, nor on any of the web sites where the “Jessica” piece was featured. Simply, none of my license terms were met.

I called renowned copyright attorney Carolyn E. Wright for advice (www.photoattorney.com), and she took my case. While I could share some very interesting quotes and details about what ultimately ensued, I won’t. Suffice it to say that after months of legal back and forth, the law was on my side, and in the matter of Douglass v. Fairey, I emerged victorious, and a confidential settlement was reached.

Soon after, my attorney forwarded me a new AP release which stated Fairey had admitted “he sued the AP under false pretenses by lying about which AP photograph he used to make the [Obama] ‘Hope’ and ‘Progress’ posters,” and admitted that he “fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up previous lies and omissions.” I could provide details of my reaction to this news, but let’s just say it was not good.

A month or so later, New York gallery owner James Danziger blogged some photos he had taken in New York of a Stages 09 promotional poster featuring the “Jessica” art piece (photos reproduced below with his permission). Underneath the image of the “Jessica” art piece, in very tiny text, was my credit. James wrote this particular blog entry (read it here) specifically because he had never before seen a credit appear alongside any of Fairey’s works.

I don’t actually have a copy of that promotional poster, but I finally got my credit. A poster of the “Jessica” art piece was also issued, and proceeds from the sale of the now-sold-out poster were donated to cancer charities (see the poster below).

For my part, I think that fighting for your rights is always worthwhile. Fairey’s art may be better known than mine, but his art is no more or less important, and his rights as an artist are no more or less important than mine.

I still don’t know why any artist would deny another artist credit for their work, especially when their own work is based upon another person’s original creation. If any artist thinks that the creators of photographic images are not as worthy of credit as the creators of paintings, multimedia collages or other types of art, then I humbly submit that disdain for another artist’s medium has no place in the art world.

In one of his many blog posts on the Shepard Fairey / Mannie Garcia matter, James Danziger perhaps more eloquently summarizes my point. In his post, entitled “I Object,” he states:

“There’s nearly always a suggestion in these discussions that if you don’t back the artist (as opposed to the photographer) you’re trampling on their freedom of expression. In these situations (not all of which went to court) — Jeff Koons and Andrea Blanch, Richard Prince and the original photographers of the Marlboro Men campaign, Warhol and Frank Powolny (who took the Marilyn Monroe photograph), and now Fairey and Garcia — there’s an implication that defining yourself as an “artist” as opposed to a “photographer” makes you more important and gives you special privilege. It also implies that a straightforward photograph is of lesser significance or value than a painting or conceptual work of art. I object.”

On February 24, 2012, Fairey pleaded guilty to criminal contempt relating to destruction of documents and falsifying evidence in the Obama “Hope” case.

U.S. Attorney Preet Bharara said in a statement that Fairey “went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation, creating fake documents and destroying others in an effort to subvert the civil discovery process.”

AP President and CEO Tom Curley released a statement which said: “Mr. Fairey started this case by suing the AP over copyright fair use issues. The AP never expected the case to take the turn that it did. The AP hopes that some good may come of this, by alerting judges and parties to the possibility that fake evidence may exist.”

While I’ve kept this story quiet for more than two years, it is my hope that by sharing it, my colleagues in the photography world will understand that you can fight for your rights and win. It’s not easy. But it can be done.

Dina Douglass
Andrena Photography
February 27, 2012

Andrena Photography
ColorPop

174 Comments On This Topic
  1. Chris Mann
    02.27.12

    A very sad and cautionary tale.

    On the one hand, I’m glad that you were able to uphold your rights as the creator of the source material for Fairey’s poster – but on the other hand I’m sad that you had to go to such lengths to have your fundamental rights acknowledged (even to such a cursory) extent, and to hold Shepard Fairey accountable for his clear and unjustifiable breach of your original agreement.

    And it’s even more regrettable that it seems that you are not the only photographer that he has treated in this high-handed and disrespectful way.

    Of all people, another creative artist should understand and respect a fellow creator’s basic right to have their efforts acknowledged – especially when you contributed your image purely to benefit an extremely worthy cause, and not for your own personal gain.

    Karma is, of course, a wonderful thing. But none of this should have ever happened. The ultimate loser (if there is any justice) should of course be Fairey himself – his reputation should surely be in the trash…

  2. Steve Holcroft
    02.27.12

    It’s shocking that any artist can use a photograph as the fundamental basis of a piece of work and not consider the photographer worthy of mention. The finished work should have been considered a collaboration between artists, rather than the selfish product of the last person who touched it.
    Well done for fighting for recognition.

  3. Annie Warren
    02.27.12

    I am appalled that one artist could show such a blatant lack of respect for other artists and their rights. I can only put his deplorable actions down to sheer ego and belief that he is more important than the photographers who created the images on which he bases his art works. I clearly remember your initial excitement and how honoured you felt when Fairey first approached you about the use of your image. As it turns out he is simply not worthy of your honour, or your beautiful photograph. I’m so sorry you went through this ordeal Andrena, but I applaud you for having the strength and courage to stand up for your rights.

  4. Louis Schroder
    02.27.12

    Way to go Andrena. I can imagine your frustration with this and I
    Am glad you came out on top. Continue creating beautiful Original work unlike others that takes someones elses work and does some glorified photoshop on it.

  5. Nikki Mcleod
    02.27.12

    What an interesting & difficult situation for you.

    Protect your copyright.

  6. Cindy Alderton
    02.27.12

    Congratulations on a fight well fought and a victory well deserved.

  7. David Pearce
    02.27.12

    I am so pleased that you won this case Dina. It was a horrible thing to go through and well done for sticking to your beliefs and fighting for your rights. Not many are brave enough to do that. You are one of the worlds great people in mind and spirit.

  8. Allegra
    02.27.12

    What a scum bucket. It’s bad enough when corporate tries to rip off artists but when it’s one of our own… really? It’s not like your licensing terms seemed to have been especially onerous. I’m so glad that you fought this and I’m so glad you won. Quick question for you that I didn’t see in your post – was your image registered with the copyright office?

  9. George Weir
    02.27.12

    Dina:
    It truly warms the cockles of my heart to read how you have prevailed here. I trust and hope that by this outcome many photographers/artists will take note and let this guide their own actions and resolve in this age of “digital feudalism”.
    Dina, I raise my glass to you!

    All my very best wishes.
    George

  10. Michael Caswell
    02.27.12

    Great job, Dina… good for you for not backing down and letting this guy run over you.

  11. Monique Dykstra
    02.27.12

    Good for you! You stood up for your rights as a photographer, and won. You set a great example for all of us.

  12. Marcia Gold
    02.27.12

    What a shocking tale of deceit and lies. I am sure there is a lot more to this story and you’re just being discreet. It’s too bad that someone with his probable talent chooses to stoop so low as to make it a larcenous habit to steal images from photographers. It goes way beyond the “easier to beg forgiveness than ask permission” modus operandi. I personally believe that he was allowed as a child to take whatever he wanted, and that entitlement has carried on into his adulthood. In the end, however, he will end up alone in life, because I am sure he behaves similarly towards his friends and family.

  13. patti harrell
    02.27.12

    This is sad that an artist like Shepard Fairey would stoop to this level. The only word that comes to mind and sticks is disrespect. What was he thinking? Clearly only of himself! Thanks for standing up for the rights of not only yourself, but so many others! I know it took up so much of your time and money…… time that could have been spent in so many other positive ways, but then again, in the end, it was probably some the best creative and rewarding time you have spent! Thanks for all you do for the photography community!

  14. Tammy Warnock
    02.27.12

    I am so very proud of you for being an amazing artist and having the courage to stand up to Mr. Fairey to secure the credit that you should have had all along. You have conducted yourself with courage and grace and I am proud to have you as a friend. As for the dishonest Mr. Fairey, I sincerely hope that the courts throw the book at him in a manner that will make him think twice about ever EVER violating the rights of another artist.

  15. Phillip Colwart
    02.27.12

    Congratulations, Dina, and on behalf of photographers everywhere, thank you for your tenacity in seeing this through. Nowadays, once an image digitally leaves our computers, the whole world seems to think that it is fair game to use that image for any purpose they wish. Your battle will hopefully raise awareness, at least within our art community, that every image has a creator with rights.

  16. Rob Greer
    02.27.12

    I’m hopeful that this cautionary tale will serve as a lesson for photographers everywhere who may one day be approached by Fairey (or other artists). I know that if someone approached me today with a similar offer, your post here would jump straight to mind. Bully for you Dina! Rock on!

  17. Elizabeth Atkins
    02.27.12

    Dina-

    Just wanted to say how awesome I think this is, and how much you’ve inspired me over the course of the last year. Thank you so much for sharing your experience and encouraging others to stand up for what is rightfully theirs.

    You do amazing work, and we are all the better for it!

    Keep rockin’,
    -E

  18. Cathy Deschamps
    02.27.12

    Dina, thank you for being a champion for the rest of us.

  19. Greg Gibson
    02.27.12

    Dina – thanks for taking on the battle. By fighting for your own rights, you are fighting for the rights of all photographers. Proud of you for seeing it through.

  20. Robert Welch
    02.27.12

    Dina, it is a shame that the art piece got so much ‘air play’ without you having ever been mentioned as original artwork material creator. The fact this was a project for a charity cause doesn’t absolve Mr. Fairey from doing the right thing and acknowledging the source for his project, which was your creative vision that inspired him and was the original form from which he embellished. If anyone’s name belonged second on that piece, it was his, the fact that your original contribution wasn’t even acknowledged in the presentation was blatant disregard on his part. Obviously your contribution was greatly important to this work as it was the creativity of your vision that was the foundation of his work and was the core graphic element even in the final product. Good for you to stand up for your right to be recognized, and shame on Mr. Fairey for lacking any conscience toward the efforts of other artist.

  21. Steve D
    02.27.12

    It’s sad that it had to come to this, but I’m so glad you stood up for your rights as a fellow artist…and won! Thank you for sharing the story of your battle. I found it to be inspirational!

  22. Dax
    02.27.12

    Words can describe how grateful I am on behalf of all artists for standing up for all of our rights! A humble and sincere thank you!

  23. Rebecca Little
    02.27.12

    Good for you, Dina! How disheartening that someone would do this, and so blatantly! I’m glad it worked out in your favor.

  24. Stacy Reeves
    02.27.12

    Shepard Fairey has proven himself to be completely disrespectful of the rights of any artist other than himself, not to mention a person who happily plays fast and loose with the law. Thank you so much for standing up to him and defending not just your rights, but the rights of photographers everywhere.

  25. Michelle Allmon
    02.27.12

    Way to go!

  26. Aly Medina/La Luz Photography
    02.27.12

    Way to go, Dina. You fought for what all artists deserve: credit for their work! I admire your tenacity and your unwillingness to shrink down in the face of big corporations and cowardly artists.

  27. Susan Ashe
    02.27.12

    Bravo Dina. So very proud of you for fighting for your rights as an artist and a photographer.

  28. Phillip Blume
    02.27.12

    Well said, Dina. Thanks for illustrating so clearly the need to protect our legal rights as artists. I am disgusted (but sadly not surprised) when another artist is willing to trample those rights, then take illegal actions to cover his tracks and — ironically — to claim the same rights for himself.

    The artificial distinction between “photographer” and “multimedia artist” perplexes me. Since when was a photograph more “straightforward” than an art print in some other medium? Fairey’s re-mix of your image certainly deserves credit for its artistic merits: He did add certain multimedia flourishes and his own color palette. However, the primary value of the image remains your work: your choices of subject, creative lighting, mood, pose, context, etc. All of these elements are worked out by the photographer in advance of the “straightforward” shutter release. And, if I may say so, you pulled them off brilliantly. A wonderful image, for which you deserve full credit. Keep up the good work!

  29. Elena Hernandez
    02.27.12

    I am proud that you fought for your rights and won Dina. Right is Right. Thank you for sharing your important story with all of us!
    Blessings,
    Elena

  30. Karen
    02.27.12

    Dina, congrats on sticking to your guns and standing up for your rights as an artist – and for all of our rights. You are amazing!

  31. Laurence
    02.27.12

    I commend you for sticking to your guns and following through. I know litigation becomes a black hole, emotionally, and you must be drained from this theft. But theft is theft, and perhaps you’ve shown that photography is no less valuable than any other art. Thanks for not being a victim – you’ve helped the entire community.

  32. Lorraine Varela
    02.27.12

    How difficult would it have been, really, for Mr. Fairey to uphold the terms of your licensing agreement, an arrangement he voluntarily entered into? Was it worth the consequences he now faces? Conduct yourself with honesty and integrity, and you’ll make your life a whole lot easier. Plus you’ll keep the respect of your peers. It’s sad that this man who considers himself an artist couldn’t show the same level of decency and respect that he would like to receive himself. I’m glad you pursued this case – successfully! – to serve as a lesson to us all.

  33. John Mireles
    02.27.12

    The more I learn about Shepard Fairey, the less I like about him. First he steals from Manny Garcia, then he lies about it in court. He takes from you without any credit. Whatever happened to creating original art? Thanks for sharing!

  34. Randy Kepple
    02.27.12

    Your heart was in the right place. It’s wonderful to see someone in your position give back to benefit something that is near and dear to your heart. You never asked for compensation. Just recognition for creating the content this artist’s derivative piece was based. It’s an interesting discussion for sure and worthy of engaging. Thank you for fighting the fight of principles and for defending the rights of artists everywhere. Continued success Andrena!

  35. Mark Creery
    02.27.12

    I really appreciate your fight for what’s fair and your openness in sharing this ordeal. Too often photographers are overlooked and not credited where due (as has happened to me in newspapers before) and hopefully this case goes some way to rectifying the problem. Photographers are not asking for too much as artists to be recognized for their efforts! Thanks, Dina, for your bravery and great work!

  36. Valentin
    02.27.12

    Dina,

    I’m so glad to see that you prevailed (you never know, even if you are in the right), especially after having to go through all of this. It’s sad that you have to fight so hard for your rights as an artist and I hope other photographers will stand for their right if needed. Thank you for setting a great example.

  37. Lane Hickenbottom
    02.27.12

    Thanks for fighting the good fight, Dina!

  38. Brenda Pottinger
    02.27.12

    Thank you so much for sharing this story. It is important to protect our rights as photographers and as artists. I wish you all the best!

  39. Sam Ellis
    02.27.12

    Congratulations on winning this case and for not just letting it slide by. I wonder how Shepard Fairey would feel if a photographer took a photo of one of his pieces, modified it in Photoshop, and then sold it as her own original artwork without acknowledging or compensating him. Of course, this has probably happend many times over with the HOPE image. I’m sure he’s not thrilled to have his work copied without compensation.
    Every artist should stand up for their rights the way you have. I hope that you were duly compensated for the hassle you had to go through.

  40. Candice Cossel
    02.27.12

    I am so glad to hear you stood up for your rights. I am so tired of photographers just bending over for anyone that wants their stuff under the guise of “why fight it”. What if we told that to other victims of crime? Thank you for being strong, brave, and showing the world that photography is just as much of an art.

  41. Mark
    02.27.12

    Dina:

    My hope is that some of our professional organizations will take note and that your triumph will set a new precedent in the fight against copyright infringement. To me, art is the manifestation of thoughts or ideas. The fact that this guy could copy yours (or others) doesn’t make him an artist. Hope this gives pause to others who think they own images — rather than prints — and that they learn to recognize the difference.

  42. Patrick Ralph
    02.27.12

    My first reaction is ‘what a Bastard!’.

    My second is that too many people don’t believe that the work of photographers, especially wedding photographers, can be art and worth protecting.

    Well done, you struck a blow for us all.

    Patrick

  43. Cindy Stafford
    02.27.12

    You asked for so little and he took so much. I am sad that your rights were breeched on such a powerful image.

  44. Elise Beall
    02.27.12

    Thank for for standing up for the rights of all photographers. So many times it’s easier to just let it go than to fight for what it right. In this instance, justice prevailed. Hopefully this case will make others think more carefully before failing to abide by licensing terms.

  45. Nina Parker
    02.27.12

    Even having basic knowledge of the situation, it was so disappointing to read this article. To hear how this artist could so blatantly disregard the agreement he had made is just startling. Thankfully the law and rightness prevailed in this situation, but the art world is diminished because of people like him.

  46. Hilda Burke
    02.27.12

    I admire you for standing up for your rights. I think many others would have just ‘let it go’, not wanting to bother with a lawsuit. Well done!

  47. Shawna Gohel
    02.27.12

    Brava Dina! You are an inspiration in every form of the word artist.

  48. Tom Darby
    02.27.12

    Congrats! I admire your persistence and appreciate the time and effort you put into it. Hopefully many will benefit by the results of your case. And just maybe in some way the cancer victims will also be the winners for your hard work!

  49. John Wiley
    02.27.12

    It is a constant source of amazement, for me, that other creatives (or, pseudo-creatives) have no qualms about doing this sort of thing.

    A pervasive “entitlement” mind-set, coupled with an equally widespread scofflaw attitude fed by ignorance and mis-/disinformation about copyright, intellectual property, “fair use”, etc., make occurrences like this increasingly common.

    I’m glad things went, more or less, in your favor (but so wishing it had turned out better for you). Even more glad this creep will finally taste justice.

  50. Brian
    02.27.12

    Thank you Dina for standing up for our rights as photographers. It probably wasn’t easy to take on Fairey but you did the right thing. Remember, United we stand, divided we fall!!

Leave a Reply

Your email address will not be published. Required fields are marked *

1 2 3 4