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. For those wondering what constitutes an insurance claim dispute in Orlando check it out here. 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

173 Comments On This Topic
  1. Josh
    02.27.12

    Well Done Andrena. Great result!!!!!

  2. Martin Fitzpatrick
    02.27.12

    Good job Dina! Not easy to stand up for your rights. You would think an artist would know better.

  3. karin kelly burns
    02.27.12

    Thanks for standing up for all artists, musicians included. Efforts like yours keep us all honest. Your portrait is very beautiful. It’s a shame that a well known artist chose to rip you off and not be up front about his actions. Kudos to you.
    Peace

  4. Stacey Doyle
    02.27.12

    Bravo Dina. I can only imagine how intense and frustrating this whole experience has been, thank you for taking on this fight!

  5. Sarah Dugan
    02.27.12

    Thank you, Dina, for continuing on with this fight, even when it became so dark and so hard. I will be using your story, along with others to make sure to educate the next generation on rights of ALL artists…

  6. Caitlin Lazo
    02.27.12

    Thank you so much for sharing and I’m so glad that it was ruled in your favor. I’m sure it wasn’t an easy battle and it shows so much class of you to keep it under wraps for 2 years until the ordeal was complete. Also a simply beautiful image to begin with!!

  7. Louise Conover
    02.27.12

    Cheers to you Dina on your triumphant win! Your perseverance is truly admirable and inspiring! I hope that photographers everywhere will be empowered to stand up and fight for their art! Your victory is a victory for all of us. Thank you!

  8. Jennifer Dery
    02.27.12

    Very well written Dina! Congrats on winning an extremely challenging case, and bigger congrats for not letting it ruin your upbeat outlook! Hugs, Jen

  9. Ellen Zaslaw
    02.27.12

    Dina, your grit is an inspiration. I bet this took a good bit out of you, first, with you suffering the indignity and the outrage, and second, with you reliving it over and over as you went through the process, and I’m sure devoting plenty of time to it. It would have been easier just to let it go. But in your highly principled way you *had* to pursue it. I’m sure the language you didn’t repeat here was choice: I admire your discretion throughout–your two years of silence and your measured way of getting the word out now. Intellectual property is the bread and butter of a great many people I know: I’ll tell them all.

  10. Coz
    02.27.12

    Congratulations Dina and thanks for sharing. Nice to know we don’t always just have to sit back and take it when people try to take advantage of us.

  11. Anna Kuperberg
    02.27.12

    Go Dina! I also recently hired Carolyn Wright to help with a copyright infringement and she was terrific!

  12. Anna Kuperberg
    02.27.12

    PS I like your photo a lot better than his print!

  13. inku
    02.27.12

    You are awesome. That Fairey guy is a douche.

  14. Flirt Photography
    02.27.12

    WOW! Kudos Dina on your work and on the graceful way you handled a tough situation. The original piece is simply gorgeous. I’m sorry credit was not given when promised and I applaud you for keeping a level head throughout this ordeal.

  15. Lynda Coulson
    02.27.12

    What an amazing story, thank you so much for sharing and well done for keeping your integrity throughout the process. It could have been very easy to go the other way I’m sure. The original image is beautiful.

  16. Mirta Barnet
    02.27.12

    Joe and I just finished reading the post. Wow. You deserve every ounce of this sweet victory and we’re so glad that justice finally caught up with Mr. Fairey. Thank you for sharing your story. It is inspirational!

  17. Justine
    02.27.12

    So proud of you my dear! Fairey is a true asshole & I hope the world forgets him as he rots in prison.

  18. Sarah Cutright
    02.27.12

    Yay! I’m so glad this is finally over for you, Dina! Thank you for sharing and congratulations that justice prevailed for you! Your original image is stronger and more significant than his “pop art” version, btw.

  19. James Boddington
    02.27.12

    Well done Dina!

  20. Jayme Goetz
    02.27.12

    Thanks for fighting the fight for all us photographers.

  21. John Henry
    02.27.12

    Good for you, Dina.

    Shepard Fairey shouldn’t be any more or less well-respected that Paris Hilton or one of the Real Housewives. He had one (contextually clever, ultimately stupid) idea 20 years ago – itself probably stolen, and certainly an only slightly above-average example of what many thousands of punk and indie kids with their zines were doing in the day – and has been milking it relentlessly ever since, through countless iterations that were always predictable by anyone who paid attention to what more inventive people were doing in related fields.

    He’s a first-rate smug, art-damaged prick though, and since that’s such a lucrative gig nowadays he’s done just fine. It should be so easy for any of us to attract dollars and adoration for attaching ourselves to the latest fashionable cause, stealing someone else’s artwork, creating a high-contrast copy of it, and selling it at auction.

  22. John Henry
    02.27.12

    Also: screw him for cutting off your raw and beautiful portrait just above her breasts and scars. It makes his version look like just another neutered image of a punk chick and steals the honesty and bravery from the image you created. Shutting up now.

  23. Dawn
    02.27.12

    Congratulations! Thanks for sharing this story.

  24. karl bratby
    02.27.12

    well done for standing up for what is right, after much stress you can now relax, i do like the piece of art that he created, though he seems like not a nice person do deal with

  25. Jay Hoque
    02.27.12

    What an idiot! Its appalling to think an artist would stoop to that level against another artist. Good on you for fighting this Dina. Congratulations on the outcome.

  26. Michael Diblicek
    02.27.12

    A very interesting read, glad you posted this.

  27. Paul Gero
    02.27.12

    Thanks for sharing this Dina, and thanks for all you did to win this case. I’m very grateful that you endured the legal wranglings–as a photographer I appreciate your efforts to protect your original work and the terms of your agreement.

    Paul

  28. Lukas Agelastos
    02.27.12

    I loved the original photo and I am glad you won the case. Good work Dina. Regards from Greece. Lukas

  29. john Michael Cooper
    02.27.12

    So glad this fell in your favor. So proud that you fought it out for yourself and for the rest of us who are sometimes afraid to step up to defend our images and rights..

  30. Dina
    02.27.12

    I am floored by all the incredible support I’ve received from all of you, and from my colleagues around the world. Thank you, from the bottom of my heart. Please feel free to tweet, repost and/or blog this story. I’m so happy that this situation has reminded us all that photographers do have rights, and that they are worth fighting for. Dina

  31. cindy harter sims
    02.27.12

    WELL DONE !! Go you for sticking up for ALL of us !!! The more that stand up the less there will be a need to do so !!!

  32. Melissa Fitzpatrick
    02.27.12

    Thank you Dina for standing up for your rights. I’m sure it would have been much easier for you to just give in and it was a long difficult battle but one that needed to be done. Congratulations and good job.

  33. Ann Hamilton
    02.27.12

    Congrats, Dina, for standing up for your rights and bringing awareness to such an important issue.

  34. Jillian
    02.27.12

    I am so sorry that you had to go through all of this for what was supposed to be a good cause! It looks as though your heart was completely in the right place while others were looking to profit.

    Good for you for standing up for the recognition that you deserve. Hopefully this will be a cautionary tale to other would be thieves who try to pass off their “art” as completely their own. Nice work girl, kudos.

  35. Kristin
    02.27.12

    Bless your words, bless your heart. Thank you!!!!

  36. James – Photographer
    02.27.12

    Thank you for going to battle for us.

  37. kym skiles
    02.27.12

    Bravo, Dina! I’m sorry you were in this situation but I applaud your stance and following through with getting the recognition that you deserved from the beginning. I can’t wrap my head around why someone wouldn’t honour the (very generous) usage agreement you requested. It would have been so simple to have given you credit and allowed you to take the photograph and avoided all this tomfoolery. *shakes head*

  38. Phil Nunez
    02.27.12

    A beautiful and striking image. And a great ending to what sounded like a pretty tough spell, well done you for fighting your corner and winning.

  39. Dancer Burns
    02.27.12

    You make me proud to be a photographer, Dina. You’re an impressive artist and an impressive person. Thank you for standing your ground and setting an excellent precedent for those of us who may some day follow. I can only imagine how grueling a journey it must have been. Cheers to you!

  40. John
    02.27.12

    Thank you for your post and for not letting him get away with this kind of behavior. Hopefully others will do the same: Shepard Fairey is a douchebag and this probably won’t be the last time someone sues him for his thievery.

  41. Jessica Brooks
    02.27.12

    Dina,
    Thank you for sharing this incredible story and for fighting for your right as a photographer. Efforts like yours help all of us.
    – jessica

  42. Roy Llera
    02.27.12

    I am so proud of you and the graceful position that you took ~ Congratulations!

  43. mary crow
    02.27.12

    Wow, Dina! I am so glad justice prevailed.

  44. Philip Flowers
    02.27.12

    Bravo for taking a stand! You’ve helped set a path where others are reluctant to travel.

  45. jen wilson
    02.27.12

    Good for you Dina!! I have always been so impressed with you, everything you do, you do with class and grace.

    jen 🙂

  46. Debrah Woods
    02.27.12

    Good for you!! It takes a lot of guts to fight for what’s right, especially in a world where true justice does not always prevail. Thank you for having the guts to fight and I am thankful that in your case, justice did prevail! Beautiful image!

  47. David j Perkins
    02.27.12

    congratulations for sticking at it…

    you did all the right things and should have your credit.

    from an artistic standing I prefer your photograph, there is only a diluted truth in painting the soul is missing.

  48. Lou Cuevas
    02.27.12

    Just adding my own applause to the standing ovation you richly deserve. We all need positive examples such as this to fight the common impression that photographers will not defend their rights. Rock on !

  49. Martin Corona
    02.27.12

    Dina,

    Thank you for sharing.

    As I grow older I an increasingly finding how reluctant people are to fight for their rights. I can’t get my own sister to file a complaint with OSHA for very clear violations at her workplace. Sometimes it’s easier to let it go and save yourself time and stress. It’s nice to read about someone successfully standing up for themselves. I’m sure there was a point when you had to make a choice if it was worth the time and energy or just let it go and move on. You made the right choice.

  50. Hannes Uys
    02.27.12

    What inspirational stuff Andrena! Sublime.

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