A mural by Shepard Fairey, whose iconic “Hope” poster for Barack Obama’s 2008 presidential campaign ultimately earned him two years’ probation, is the subject of yet another lawsuit.
The latest legal saga started in 2014, when he painted a large, two-panel mural on 556 Driggs Avenue in Williamsburg, Brooklyn. The Department of Buildings (DoB) issued a violation and a $15,000 fine to the building’s owner, Jean M. Sausa, because she didn’t have an outdoor advertising permit. The DoB argued that the mural constituted “advertising” because it featured the same imagery as appeared on the album cover that Fairey designed for the band Interpol for its record El Pintor, which came out just a few months before the mural went up.
While the album cover features the same hand imagery as the mural, the seven-inch vinyl cover featured on Fairey’s website is almost identical, right down to the words “Power” and “Glory” along the design’s bottom edge.
Sausa removed the mural after receiving the DoB violation, but last year she contested the fine arguing that the mural was a “public art installation,” not advertising. Sausa won her appeal. The City, in turn, appealed that decision back in March of this year and won. At the end of July, Sausa sued the city again to contest the fine. Her lawyer, Patrick Kilduff, turned to artistically philosophical arguments, asking, according to the New York Post: “Was Andy Warhol trying to sell Campbell’s Soup?”
It’s a bit of a false comparison, since Warhol wasn’t collaborating with Campbell’s, but Shepard was collaborating with Interpol. “When approaching our new collaboration, I liked the challenge of creating an anagram from a song title,” Fairey wrote on his blog. “Daniel Kessler suggested ‘Everything Is Wrong’ as the song for me to interpret. I love that song, so my thinking was to find a middle ground between Interpol’s aesthetics, lyrics for the song, and my art style and concepts.”
Nonetheless, Kilduff’s question about Warhol is a good one. The line distinguishing art from advertising is historically blurry. Andy Warhol may not have been trying to sell Campbell’s soup but it didn’t always matter: in 1965, 80 of his “Brillo Box” sculptures were on their way to an exhibition in Toronto and got held up at the Canadian border and ultimately taxed as commercial merchandise since they didn’t meet the conventional standards of artworks. By Canadian law, art could be imported duty-free, but had to be confirmed as an “artwork” by an expert in the field. In this case, the director of the National Gallery of Canada declined to certify that the boxes were art.
Album covers are called “album art,” and are often created by artists, but they also ultimately serve as advertising for albums. Take the art off the album, paint it on a wall, and what do you have? Hard to say, but it’s still hypothetically capable of promoting an album. The question may come down to whether or not it was intended to do so, which could be impossible to prove, as with anything that comes down to intent. And even if Interpol and Fairey had in mind that a collaboration could have cross-promotional benefits, does that take away from the artistic integrity of their endeavor?
A billboard is by definition an advertisement, and Fairey did have a billboard with the same imagery, which he calls a billboard on his website, up in Los Angeles to coincide with the seven-inch album release with the same image. On his website, he calls it: “the LA version of the Interpol collaboration.” Well, if the LA version is a billboard, was the Brooklyn version one also? Hard to say, the page has been taken off his site, but the Brooklyn one was painted and, as Sausa’s lawyer argued in court, it didn’t feature the band’s name.
This is not the first time Fairey has gotten caught up in the blurry art-advertising border region. The DoB also fined him for a 2010 mural on the Bowery that it deemed an illegal billboard advertisement for his own concurrent gallery show at Deitch Projects.
Fairey declined Hyperallergic’s requests for comment, but he seems well aware of the issue at hand. His manifesto, in explaining his infamous Obey Giant sticker, reads: “[P]eople are not used to seeing advertisements or propaganda for which the product or motive is not obvious.” What about murals for which the motive is not obvious?
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