Detroit police have issued a warrant for well-known artist Shepard Fairey in connection with his recent visit to the city, on suspicion of vandalism. While Fairey was apparently in Detroit to paint a commissioned mural at One Campus Martius, he told the Detroit Free Press, “I still do stuff on the street without permission. I'll be doing stuff on the street when I'm in Detroit.” According to the Free Press:
Police say that between May 16 and 22, Fairey pasted nine posters with his own iconic symbols like Andre the Giant and other images. The various posters are roughly square in size, and measured four or so feet in height and width.
And further:
"Just because he is a well-known artist does not take away the fact that he is also a vandal," said Detroit Police Sgt. Rebecca McKay, who oversees the city's graffiti task force. "And that's what we consider was done, in these instances, was vandalism."
There is no copyright or expressive defense to these criminal charges, nor to any civil claim for property damage. What I find interesting, however, is if this instance will provide a test case for some of the street art and moral rights questions that have been percolating.
One thing that occurred to me last week when the latest 5Pointz lawsuit was filed was whether Banksy might have been able to contribute a “work of recognized stature” that could have changed the result in the first phase of that dispute. Specifically, in the HBO documentary Banksy Does New York, it is suggested that Banksy was considering making a contribution to 5Pointz during his stay in New York. The Visual Artists Rights Act of 1990 (VARA) grants a right of attribution to artists, and a right to protect the physical integrity of a “work of recognized stature.” The standard relates to the work, not the artists, but as the recent Richard Prince controversy showed, that current runs in both directions. The time between the creation of a work and its recognition can be the blink of an eye. In the end Banksy did not contribute to 5Pointz, but what if he had? Could he have made a claim to save 5Pointz? Just part of it?
That is why I find the Fairey charge interesting. His “Giant” images are extremely well known. Regardless of his prosecution, could he assert VARA rights—literally, to prevent their destruction or painting over them—over graffiti that subjects him at the very same time to different exposure? The results are not mutually exclusive. One conundrum of this blossoming issue is that the cohort of potential plaintiffs (street artists) may not be the people one thinks will run to federal court to make a point. But Fairey is no stranger to controversy or sticking to his guns. Before it settled, his dispute with the Associated Press over his Hope image of Barack Obama was the biggest fair use visual art case since Jeff Koons (until Richard Prince appropriated Patrick Cariou’s photographs, at least).
Don’t be surprised if this story carries a high profile.
