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. Aimee
    02.27.12

    SO proud of you for fighting for it! As I’m reading, I couldn’t help but wonder how he’s the “artist”, YOU are the artist. Perhaps it is being a photographer, but the final product is art. From the original vision to the final out of your computer is the art. I can’t imagine how anyone would not consider the original image art.
    The guy sounds like a hack every which way anyone could be one. You had the vision to make an amazing, powerful image. All he could do was rip it off.
    I am so sorry you had to go through all this and that there are people out there who have such complete disregard for our rights as artists. ALL artists of every medium.
    Thank you for sharing this, thank you for fighting for your rights (which serves us ALL). Well done!

  2. Ulysses
    02.27.12

    Congratulations, Dina! You already know the incredibly high regard in which I hold you. But I truly admire the way you stuck to your guns with this. We’re better individually and as an industry for this story and your win. Thank you for sharing the tale. And thank you for this win for us all!

  3. Tim Palmer
    02.27.12

    Well done Dina! An amazing story. As an artist and a photographer I am delighted with your determination to win a victory for fairness.

  4. Frank
    02.27.12

    Always fight for your rights – you are an example to us all.

  5. Dale Matthews
    02.27.12

    Thank you Dina! For your art, for standing up for our art of photography and for sharing the story. Well done.

  6. Jen
    02.27.12

    Amazing Dina! So proud of you for standing up to him and kicking his a$$!!

  7. Braxton
    02.27.12

    I am so happy you received your much deserved credit and recognition for your art Dina. Thank you for pursuing your case and standing up for yourself while setting a precedent for other photographers.

  8. Tara K.
    02.27.12

    I sometimes worry and ask “why bother?” with the odds of your work being used without permission is so high, thanks to the vast greatness of our internet. But you’ve restored the faith. The fight can be fought, and won! THANK YOU DINA!

  9. Katya StoryMotion
    02.27.12

    Congratulations, Dina! Thank you for sharing this story. So proud of you for standing up against what he did and winning! It’s shameful what he did. I’m really disappointed and saddened how many in our (creative) industry have little integrity when it comes to someone else’s work, or just their professional behavior in general. You, on the other hand, have been an amazing source of inspiration and a great friend. I wish we had more truly talented and giving people like you in this industry.

  10. Richard Galloway
    02.27.12

    Good for you. It is a sad reflection of the world we live in that photographers are not seen as artists and therefore not given their due. Of course we are often not our own bes advocates in this regard. What was really sad to see was the fact that he tried to take advantage of you who showed nothing but good faith. Was it a cynical attempt on his part or just thoughtlessness – either way very shabby behaviour. Very glad that you pursued it. It’s a great image BTW!

  11. Ray Prevost
    02.27.12

    Nothing more to add but my support and my admiration. 🙂

  12. Adam George
    02.27.12

    If your art was any less worthy than his own, he wouldn’t have needed your photograph to begin with. The pose, light, and captured expression – ALL YOU. Thank you for defending our art form and copyright in general. Your efforts are appreciated!

  13. Aimee
    02.27.12

    Well said Adam.

  14. Kelly Vasami
    02.27.12

    Your original photograph is incredibly moving and so very beautiful. I can see what Fairey was inspired by it. His work does not hold a candle to your original. I applaud you for standing up for your rights, I am sure this was not an easy road.

  15. Thomas Lunt
    02.27.12

    first comment….FANTASTIC work! I am blown away by the original image.

    second…Good for you! All artists deserve proper credit and I want to thank you for standing up for all of us. Great job!

  16. Kevin
    02.27.12

    Thank you Dina for standing up for your creative rights! This isn’t an easy thing to do. I am proud to say I know you!

  17. Thomas Geist
    02.27.12

    Andrena! I am glad this took a somewhat positive turn for you! Photography is art, hard work and livelihood all in one and it needs to be honored as this. You didn’t even ask for much!
    There is an old rule: whoever benefits from you work must compensate, unless YOU waive compensation. NO ONE has the right to diminish your right to this.
    You did the whole photography industry a huge favor with your persistence and since I am part of this industry I say THANK YOU!

  18. Jesus Tirso
    02.27.12

    Dina, YOU are the original artist in this piece. While he can claim to be an “artist” and get all the publicity, he is lacks originality and just derives his “art” from that of others.

    I am glad it turned out how it did – with you as well as the AP. A leopard never changes its spots.

  19. Michele Stapleton
    02.27.12

    His work would have been NOTHING without your photograph. For him to not praise your contribution at every possibility opportunity says a lot about what kind of person he apparently is. What an ego!

  20. Clay Toporski Photography
    02.27.12

    Thank you for sharing your story with everyone. It is really a shame that another artist would stoop this low amongst his peers and that giant commercial partners such as Nike wouldn’t due their due diligence as well. While it is upsetting this happened to you, hopefully it is a lesson that teaches future generations of artists about the importance of copyright laws.

  21. Tamera Goldsmith
    02.27.12

    Dina, I’m so glad this is over for you, and that you prevailed. I know how much stress this has caused you over the last couple of years. Thanks for standing up for all of us 🙂 Tamera

  22. Bobbi Petersen
    02.27.12

    I am disgusted and appalled that he thought he could get away with this… which is sad because he is a really great artist. It took long enough but he definitely got what he deserved. Congratulations on an awesome victory!

  23. Eli Powell
    02.27.12

    Thatnks for sharing your story Dina. Props for standing up for your beautiful work.

  24. Susie Canino|Miami and Vero Beach Wedding Photography
    02.27.12

    Dina, you are a true artist, and he lacks integrity and it shows. I am so glad you are finally getting recognition for your art.

  25. Anne Ruthmann
    02.27.12

    Way to go girl. Too many artists don’t stand up for their rights- especially when it may be perceived as a “collaboration” of sorts. Likewise, too many more people don’t even protect their work online by putting their own name on it. Thank you for taking this to the next level and for sharing your experience with us all.

  26. Jenifer Samaha
    02.27.12

    Good for you!!

  27. Melanie East Photography
    02.27.12

    Well done Dina! I am so glad you stood up for your creative rights. Your original image is beautiful. Thank you for sharing your story.

  28. Teri
    02.27.12

    Bravo Dina! Standing up for your creative rights will inspire others to do the same. Thank you for sharing this story.

    Also, the image of Jessica is just hauntingly beautiful.

    Hugs!
    Teri

  29. Geoff Shaw
    02.27.12

    Thank you Dina for persisting through a very difficult problem and fighting for your rights. Not all photographers would have been up for such a battle. I’m so glad you were victorious and I find even the fact that you saw it through is very inspiring. And of course – great photograph!

  30. Gary B.
    02.27.12

    It is easy to rip-off the concept or work of another artist. To deny doing so is wrong on many levels. It is apparent that as of late Shepard Fairey is finding out that individual artists, especially photographers actually care about deserved recognition and compensation. As with anything, do it with honor and integrity, something Mr. Fairey is learning the hard way.

  31. Paul Aazpeitia
    02.27.12

    YEAH, DINA!!! Glad you beat this lying, thieving poseur in court!

    Fairey has shown more than once that he’s much more a thief than an artist.

    You do the hard work of setting up the shot, taking it, and printing it, then he essentially copies your work w/o credit. What scum.

  32. Nick Despres
    02.27.12

    How an artist can treat someone like this is quite incredible.
    Well done for following through on what must have been a frustrating process. I hope you now get the recognition you deserve.
    Really powerful original photograph in it’s uncropped version.

  33. Jennifer Feltis
    02.27.12

    Thank you for standing up for your rights, Dina- and therefore standing up for all of our rights. How dare one artist dimiss another’s work and yet use it in the creation of their own piece?!? I hope that both of these lawsuits will teach Fairey a long overdue lesson.

  34. christine perry-burke
    02.27.12

    Hi Dina, Congratulations on your victory. This touched me as an important message from many angles; the use of your image, the value that is put on all forms of art and beast cancer awareness. Hopefully your victory will get the attention it deserves.

  35. Andree Kehn
    02.27.12

    Congratulations on winning your case. How horrifying it must have been for you to realize that your entire agreement was ignored.

  36. Pamela Henry-Biskup
    02.27.12

    Dina, you rule!! Congratulations, way to go fighting for your rights. XOXOX Love you, Pamela

  37. Amanda
    02.27.12

    Good for you Dina! If more of us stood together over our rights then maybe this would happen less. I feel the same about artists and musicians…..the creative arts seem to be a “free for all” but no one would walk into a store and take stuff off the shelves and expect to get off scott-free. It’s crazy how just a simple thing like putting your name on the remarkable first image, even out of respect for you helping them out, was such a big deal for them.

  38. Landon Finch
    02.27.12

    It is refreshing to see copyright fought for and protected. In this day and age copyright is often trampled and disregarded (if even considered in the first place). Well done Andrena and Carolyn!!!!

  39. Gina
    02.27.12

    It’s disheartening to hear that a well known artist would go to such lengths and follow regular practices of disregard for other artists rights. He had an opportunity to set an example but the example he chose was not a good one. Dina, your victory along with the recent news of the AP lawsuit will no doubt serve as a reminder that all artists rights are equal. Kudos!

  40. Ellen Wolff
    02.27.12

    Dina! You prevailed, and because of that you have turned the tide for everything that comes after this. I am sure we will start to see some change. Thank you.

  41. Kristen P.
    02.27.12

    I am glad you fought for your rights and your copyrights. Way to go, Dina!

  42. David Tucker
    02.27.12

    Perhaps one day Mr. Fairey will have the shock of his life and wake up to realize there are other people in the world beside himself. Until then we’ll have to rely upon the law, and people like you who stand up for themselves, as well as all of us. Love your work, and as always wishing you all the best.

  43. Kathy Rappaport
    02.27.12

    Dina, Thank you so much for all the effort you put into this. It is not just about the single incident of having an image stolen. It’s just as much about the entire process of copyright, derivative works and teaching the public that all photographers and artists must protect their work and that of others. We must also be proactive and remain vigilant to protect what is rightly ours.

  44. Christine
    02.27.12

    I just wrote on my personal blog about a news outlet in Houston crediting “Facebook” for photographs instead of the photographers. We *must* stand up for our rights! Kudos to you for staying strong and fighting this! I’m so glad you won!

  45. Danielle Richards
    02.27.12

    Dina, you honor all photographers by sticking up for your rights as creator of the image. I am dumbfounded that your very simple – and generous – usage terms were not met, and happy that you prevailed in the legal system.

  46. Greg
    02.27.12

    How nice, Fairey gave you the finger and you bent it around backwards and poked him in the eye with it.

    Photoshopping can be art, but Photoshopping someone else’s art, doesn’t magically make it yours. Thank you for the effort.

  47. Tracy
    02.27.12

    I have no conflict in saying that Mr. Fairey is a sham. The term “transformative” may be subjective, but it can’t possibly mean merely changing the contrast and color of a photo and slapping the word “obey” onto it. Transformative *should* refer to subtext. Where is the meaning in his work? Of course we like it; he takes stunning images and erases any challenge from them. His portrait of Angela Davis can hang alongside Andre the Giant without disconnect because they have both been rendered generic, simplified to better hang above an Ikea sofa. And, his attitude is appalling. Clearly, his refusal to give credit was motivated by greed and narcissism. Since he has an obvious talent for picking out compelling images, why doesn’t he hang up his hat and open a gallery?

  48. Davy
    02.27.12

    I applaud you Dina. You asked for so little. He gave you nothing, except to treat you with contempt. Perhaps he saw your generosity as a sign of weakness. Stupid boy. :o) Well done for standing up for your (and every other photographers) rights.

  49. Rogier
    02.27.12

    Well done Dina. Thanks to his perjury and illegal behavior in the AP case, we’ve all learned this past week what a deceitful little weasel Mr. Fairey is. Your experiences with serve to remind us that that was simply business as usual for him. Good for you for standing up to this thieving swine. May his fortune go the way of his reputation.

  50. Peter Zack
    02.27.12

    Good for you Dina in standing up for your rights and prevailing in this case. It’s a strong message to all photographers everywhere to protect their work. In doing this, you’ve sent a strong message to these sham artists everywhere.

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