Shepard Fairey is the creator of the iconic Obama “Hope” poster. He’s been admired by critics and guerilla artists, and just weeks ago he was the subject of a profile on CBS Sunday Morning. But Pittsburgh graphic designer Larkin Werner has a different perspective. To him, Fairey is the guy who is “picking on a baby.”
The baby in question is Steelerbaby, a blue-eyed kewpie doll clad in a knit black-and-gold uniform. Steelerbaby became an online hit — he boasts more than 2,000 friends on Facebook — after Werner created a Web site for the doll during the NFL playoffs in 2005. The following year, he started designing and selling Steelerbaby merchandise at the online store cafepress.com to satisfy demand for the doll Werner describes as “slightly creepy.”
But early last month, Werner learned that Fairey’s company, Obey Giant Art Inc., sent cafepress.com a cease-and-desist letter, informing the online store that Steelerbaby’s merchandise marked with the word “Obey” was infringing on the artist’s trademark.
The notice came as a surprise to Werner. For one thing, he says, Steelerbaby’s line didn’t pose much of a threat to Fairey. According to cafepress.com, Werner had made less than $70 in the previous three months for the sale of 16 items, 10 of which had “Obey” written on them.
But Werner says he’s less concerned with the legal issue presented by the cease-and-desist letter — he has no plans to fight Obey Giant Art about the trademark — than he is with its hypocritical nature. Fairey, he argues, has bolstered his own career by appropriating images and infringing on the trademarks of others.
“[Fairey] has become sort of what he was rebelling against,” says Werner, a partner at the North Side graphic-design firm Wall-to-Wall Studios. “He’s ripped off political posters for a long time without attributing the source.”
Today, Fairey finds himself in a legal dispute over his Obama “Hope” image, which became a national sensation and a symbol for the president’s campaign last year. Fairey lifted an Associated Press photo for the piece, and the AP is seeking compensation for the copyright infringement. But before the AP could file suit, the artist sued first, claiming he drastically changed the nature of the photo for his artwork and, therefore, was not breaking copyright law.
Even before the AP dispute, Fairey was flaunting trademark laws. In fact, that’s how the artist’s “Obey” trademark was born.
The 39-year-old Fairey launched his career in the late 1980s. He quickly gained street cred by posting — often without permission — his signature image of professional wrestler Andre the Giant on buildings in various cities. Initially, the artist’s rendering of the wrestler was accompanied by the caption “Andre the Giant Has a Posse.” But Titan Sports, Inc. (now World Wrestling Entertainment, Inc.) threatened to sue Fairey for infringing on its trademarked name, Andre the Giant.
In response, Fairey changed the caption to “Obey.” Since then, the word has come to identify the artist’s brand.
“At the surface, it’s really easy to say [Fairey] is a hypocrite,” acknowledges Chris Broders, Fairey’s partner in the Obey Clothing brand. “But where it starts to get tricky is when people take the ‘Obey’ mark and try to sell it. That’s when it crosses the line.
“We’re not trying to be hypocritical,” he continues, “but we’re definitely trying to protect our trademark.”
Still, Werner says he has trouble understanding how Steelerbaby’s use of the word “Obey” is infringing on Fairey’s trademark. He says the use of “Obey” on merchandise was conceived from a line Steelerbaby voices on its Web site.
Steelerbaby’s bare-bones site allows visitors to click on a number of different words and phrases — “Here we go Steelers,” “Doom wears a diaper” — which are then voiced by the doll. Werner says it wasn’t long until visitors took note of one particularly demonic-sounding phrase, “Obey Steelerbaby.”
“It was a weird, hypnotic [phrase],” Werner explains.
Inspired by the popularity of the “Obey Steelerbaby” line, some of the merchandise he designed and started selling on cafepress.com in 2006 included the phrase. For instance, some items picture the doll standing between the words “Obey” and “Steelerbaby.” Others simply show Steelerbaby standing below the word “Obey.”
So when he learned last month that Fairey’s company had an issue with his use of the word “Obey,” Werner was confused.
“I didn’t think I was ripping him off,” he says. “The thread came from what the doll was saying. … There is no graphic connection to [Fairey’s artwork]. We don’t even share the same market.”
But representatives from Fairey’s company, Obey Giant Art, say that doesn’t matter.
“We have the trademark on [‘Obey’],” says Olivia Perches, who sent the cease-and-desist letter to cafepress.com. “Anything with ‘Obey’ on it they can’t have.”
According to Jeffrey Cadle, who practices trademark law for PicadioSneathMiller & Norton, P.C., Fairey’s company has greater authority to enforce “Obey” because it is a registered trademark, which “gives you the right to use your trademark nationwide.”
“In order to maintain trademark rights, parties have to actively pursue infringement,” he continues. “I’m sure that’s why Steelerbaby received a legal notice.”
Still, Obey Giant Art’s case isn’t so cut-and-dry, says Cadle, especially since there are a number of factors that play into trademark disputes. If the matter ever went to court, he says, the company would have to argue successfully that Steelerbaby’s merchandise was confusing consumers. “They would have to say that the product is causing … people to think it’s coming from Shepard Fairey,” Cadle says.
But Werner says he has no intentions of putting up a fight.
“It’s most likely going to be a colossal waste of my time,” he says. “For me to spend money to rectify this is silly.”
Ever since receiving the cease-and-desist letter, Werner says all of Steelerbaby’s merchandise showing the word “Obey” has been removed from the online store. While he’s still miffed by Obey Giant Art’s move, Werner says Steelerbaby is moving on.
“He’s taking it all in stride,” jokes Werner. “He’s not going to be hung up on some street-gone-corporate artist.”
This article appears in Mar 5-11, 2009.
Note to Mr. Broders- Shepard Faireys partner- not just on the surface but underneath the surfact too- Mr.Fairey- is indeed being hypocritical.
Note to Mr. Cadle- Mr. Fairey’s company has no greater authority to enforce Obey and it is untrue that a federally registered trademark” gives you the right to use your trademark nationwide”
Note to Ms. Perches- a reprentative from Fairey’s company- it is untrue that because you have a trademark on the word Obey “anything with obey on it they can’t have”
Note to Mr. Werner- you are missing out on a PR opportunity here.
I can almost understand the Steelerbaby merchandise with just the word “obey,” but I have a Steelerbaby mug with “Obey Steelerbaby” which is completely different phrase. Fairey has become the same type of corporation he claims to fight against.
Typical of a guy that never was truly an artist to begin with. It’s funny how the successful artists who are truly artists to the core no matter the medium keep their artistic integrity and remain artists when they make it big. And then there are guys like Feiry who once they realize they can get some notice for what they do stop pursuing their art and start pursuing their business. He’s compromised and this proves it. Steeler Baby is brilliant and harmless and done out of love and fun not for money.
I thought parody was covered under fair use[?]
I just recently heard Fairey with Terri Gross on NPR and she talked with him about his use of the AP photographer’s original image of Obama as a basis for his well-known poster. After hearing Fairey defend ripping off the photographer and then suing AP ( who is actually in a dispute with the original photographer over rights to the image used by Fairey) the one who comes out of this sadly on the greasy end of the stick is the photographer Manny Garcia. Most people who have looked at Fairey’s word closely know that he’s strictly a derivative artist. If it’s not out and out plagiarism, it’s certainly VERY derivative of others’ work. OK. Fine. But it irks me when he makes claims like this whole OBEY thing.
Ludicrous.
“We’re not trying to be hypocritical,” he continues, “but we’re definitely trying to protect our trademark.”
Yeah I guess no one really sets out with the agenda of being hypocritical, it’s just something that happens when one determines a particular course of action contrary to to what they dictate. Like advocating free speech and condemning anti-consumerism through a contemporary art medium and then assailing free trade and promoting capitalism through the current legal system.
What a kook.
Late 80’s ??? Please Shepard Fairey was still “studying” “art” at RISDI in the late 80’s and sending embarrassing fan mail to West Coast clothing companies that he idolized. Fairey didn’t start is horribly meaningless campaigns until the mid-nineties. Get your facts straight.
Hey Sheila E. It’s well documented that the “Andre the Giant has a Posse” image was created in 1986 and Titan Sports sued Fairey in 1988 for use of the image. I think that Mr. Young did a fine job in getting his facts straight and in crafting this article.
Fairey’s ENTIRE career has been based on ripping off other artist’s work and calling it his own.
Read this for a detailed accounting.
http://www.art-for-a-change.com/Obey/index.htm
This discussion is the difference between copying and deriving. Fairey derived his Obama image from an original photograph. It is in terms of artistic usage, drastically different from the original…no longer a photograph.
Werner copied Fairey’s use of the word OBEY. Anyone who knows anything about art knows this word is trademarked by Fairey and is a part of his brand. As much as the target symbol and the swoosh…it is his “mark”. Werner most likely used it thinking he’d get away with it or get some publicity out of it….which seems to be working.
Fairey is such a hypocritical jerk ass. This isn’t the first time he’s sued people either.
You can’t believe anything that Fairey produces is an original image let alone an original thought. And the best part is he pulls in about 25 grand to his corporation each time he whips out one of those “anti-corporate” posters of his. But really, worse than him is his legion of fans that eat it up without thinking.
And the post by ‘sanderson’ is moronic. Please stop acting like you’re a lawyer.
i can’t believe I just wasted 6 minutes of my life reading this. i feel retarded.
@ sanderson
You couldn’t be more wrong.
Would anyone have a problem understanding Levi-Stauss’s perspective if the word “LEVI’S” appeared above the baby? Obey is the name of the company and a registered trademark that appears in a very similar fashion all over Obey Giant products.
You might even recall a line of advertising that Levi’s used a while back involving a very similar kewpie doll. And do the Steeler’s and the NFL have anything to do with this thing??? I don’t even want to start on those discussions.
When I first saw the image that accompanies this article I spent about a minute trying to figure out why Obey Giant was affiliated with the Steelers and this doll creature. There is no doubt in my mind that the doll merchandise would create genuine confusion among Shepard Fairey fans, confuse Steelers fans, confuse Obey customers, and dilute the Obey company’s trademark.
There is equally no doubt in my mind that the Hope portrait that Fairey illustrated based on the AP photo by Mannie Garcia will never be confused with the original. It took a concerted effort over about a year of searching by many people to find several possible photos that might have been the original source of inspiration for Fairey.
The original Andre the Giant image was done as a practical joke and ultimately developed a cult following. At that level it was more of a parody than a commercial endeavor. Fairey settled with WWE when they pressed the issue with his use of Andre the Giant and he developed a new iconic image and branding that didn’t directly use Andre the Giant’s picture or trademarked name to accomplish the same goal in his art.
WWE themselves got into a trademark dispute a few years back when they were still the World Wrestling Federation as you all may recall with the World Wildlife Fund and lost. These things happen in business. It normally isn’t personal and people and companies normally don’t start out trying to infringe one another’s trademarks.
Werner should try putting “McDonald’s”, “Steeler’s” or “NFL” on his doll merchandise and see what happens.
Hey Rumspring,
You wrote:
The original Andre the Giant image was done as a practical joke and ultimately developed a cult following. At that level it was more of a parody than a commercial endeavor.
That’s the same case as Steelerbaby, now with Fairey taking on the Role of the WWF.
The point of the article is that Fairey says he can do anything, but no one else can.
A few points Steelerbaby would like to make here.
1. Obey Giant’s trademark of the word “Obey” has very specific usages in order to be TM-ed. You can find these on the uspto.gov website that polices this. Steelerbaby does not infringe upon OB’s intended use. To say they own the word globally is greedy, narrow-minded, and just plain incorrect. Does Hello Kitty own “hello”? Of course they don’t. It’s too common a word. Like obey. And to take that a step further, if Steelerbaby had the word “Hello” above him, would it be confusing the consumer into thinking it was a Hello Kitty product? Is there any visual connection at all? About as much as there is to Obey Giant. None.
2. rumspring. Sure, let’s start those discussions.
— You were confused by “Obey Steelerbaby” being a Fairey project? — than honestly you don’t understand the Obey Giant brand. At. All.
— If Steelerbaby had “Levi” above him — guess what — that would be OK. First of all it’s a person’s first name. Just like if Steelerbaby had “John” or “Fred” or even “Tiger” for that matter. Second of all I’m not selling jeans. It’s not a related market or product. That’s an important distinction.
— Your point about the Steelers and the NFL? Never a problem. I don’t use the word “Steelers,” I don’t use their logos, official colors or fonts. I don’t use a realistic facsimile of their uniform. I don’t imply such ownership or endorsement on the site. The NFL, one of the most aggressive TM police forces out there, understand it for what it is — a humor and fan site.
— Putting McDonalds, or Steelers or NFL or Levi Strauss or Tiger Woods with the doll would be pretty stupid. Thanks for the tip.
— I don’t claim to have the lock on creepy dolls acting out. In fact Steelerbaby, Buddy Lee, Chucky, Bride of Chucky, and the Pillsbury Dough Boy are all friends and get together weekly for a dolls-night-out poker/chutes-n-ladders game. But as far as I know I think he’s the eight-inch kewpie dressed in vintage black and gold crochet that cheers for the Steelers on the world wide web. Can you at least give me a point for that?
— You were really confused? It took you a whole minute to figure it out? Wow. Maybe I should reconsider this whole thing, maybe Steelerbaby is ripping off Fairey and “diluting” his brand … but in over four years and 1.5 million page views only you and Olivia Perches (OB) have made that comment. Of course, you had the article right in front of you, and Ms Perches has a client with an ego the size of a, well, of a giant.
3. Brand. A brand isn’t a tangible thing like a logo or a word-mark or even a style. Those help influence a brand, but a brand is really what is projected back to a company, product, etc by the public. It’s creating a mindset and an emotional response and delivering on a promise. Underground, subversive, anti-establishment, anti-corporation, street, attitude, freedom of expression, smart. That -was- the Obey Giant brand. Not a word, or a picture. Fairey has done more to hurt his brand recently than he has in the past 15 years building it.
4. Hypocrite? Hell yes. I realize that intellectual property is different than fair use, but what would you call exploiting the word of others (with no attribution) for personal gain while at the same time enforcing a trade mark? He’s sloppy like that. Why do you think the Obama campaign never officially endorsed the poster? (Recognized it as a stunning piece of graphic and political art, and embraced it, but never endorsed). Why? Because I bet they knew of his loose interpretation of fair use and didn’t want to get in the middle of a shit-storm … oops.
5. AND FINALLY, guess what — Obey Giant withdrew their cease and desist order. So you tell me why.
Score one for the little guy.
I think the decision to serve the cease and desist order came more from Shepard’s legal team more than directly from him. It was probably brought to their attention and they moved in on it. There are so many apparel brands out there that its inevitable for someone to try and cash in on a current trend by almost directly copying someone else’s designs. I’m not saying that is the case for Werner, but at first glance to a person who is more familiar with Shepard Fairey than a Steelers fan site, the image is definitely characteristic of Fairey’s clothing line. All hypocrisy arguments aside, these companies deal with this type of thing all the time and were only doing the job they were hired for. After a closer look they will probably realize the context and back off.
What make this all the more ridiculous is that most likely (especially since Fairey is known for lifting ideas from other sources)he lifted the word Obey from the 1988 John Carpenter movie “They Live”.
Here’s a quote from the wikipedia page:
“When Nada later dons the glasses for the first time, the world appears in shades of grey, with significant differences. He notices that a billboard now simply displays the word “Obey”; without them it advertises that Control Data is “creating a transparent computing environment.” All printed matter around him contains subliminal advertising.
Now to issue a cease and desist order on an idea that wasn’t even originally his..now that is just nonsense and idiotic.