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Shepard Fairey's artistic intentions

February 14, 2009 | 12:00 pm

David Ross, former director of the San Francisco Museum of Modern Art and New York's Whitney Museum of American Art, was on Comedy Central's "The Colbert Report" the other night to engage in a semi-serious debate over pending lawsuits around the famous Obama poster designed by L.A. street artist Shepard Fairey.

At issue is copyright and fair use, because the poster employed part of a news photograph shot at a public event for the Associated Press by Mannie Garcia. Arguing the other side was Colbert's brother, Ed, a copyright attorney.

Surprisingly, part of Ross' defense of Fairey revolved around "intention" -- the idea that an artist is the one who decides what a work of art is. That's been a standard art doctrine at least since Dada and Marcel Duchamp emerged early in the 20th century. Fairey intended to make a work of art, while Garcia was doing photojournalism, Ross said; any consideration of the dispute had to start there.

Why was that surprising? In the 1993 Whitney Biennial, during Ross' tenure as director, I described as a "curatorial lollapalooza" the inclusion of George Holliday's 10-minute videotape of Rodney King being beaten by Los Angeles Police Department officers. The tape had been shown endlessly on nationwide television news; Holliday was neither an artist nor a photojournalist, but a plumber. Yet, there was his video, showing among the paintings, sculptures, films and video art in an art museum's survey of recent art.

So much for intention.

At the end of the Colbert debate, the genial but exasperated host noted that his brother, Ed, had given answers that could support various claims against Fairey that could be made independently by Garcia, AP and even President Obama. Who, he demanded of his sibling, do you really think is right?

"Who's paying me?" the lawyer deadpanned. Finally, something we can all agree on.

-- Christopher Knight

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