Saturday, February 14, 2009

Shepard Fairey and the Misrepresentation of Reproductions as Lithographs by The Upper Deck Store

UPDATED: September 20, 2009
NOTE: Footnotes are enclosed with { }.





















Kobe Bryant 'KOBE' Lithograph, Autographed by Artist Shepard Fairey, Limited to: 100, $349.99
Here is your chance to own specially commissioned artwork of 2007-08 NBA MVP Kobe Bryant, created exclusively for Upper Deck by Shepard Fairey, one of today's most prominent and influential artists. Noted for creative street art campaigns and iconic pieces of work - his Barack Obama posters were in extremely high demand during the junior senator's run for the 2008 Democratic presidential nomination - Shepard Fairey continues to make bold statements through his art. While a nearly 60-foot high version of this inspiring portrait of Kobe currently looks out on L.A. from the east and west side walls of the Henry Fonda Theater in Hollywood, you can pay respect to the reigning MVP with this 20'' wide x 30'' high unframed 'KOBE' edition signed by Shepard. Incorporating a rich mixture of Lakers team colors, the visually stunning lithograph is produced on French archival paper. Shepard's signature is guaranteed authentic through Upper Deck Authenticated's patented five-step process. Like other Shepard Fairey art productions, this rare, iconic litho isn't expected to last long. Order now!
http://store.upperdeck.com/Products/Upper+Deck+Default+Catalog/PID-67406.aspx


The so-called “KOBE' Lithograph Autographed by Artist Shepard Fairey,”{1} offered for sale in an edition "limited to: 100
"{2} at $345 each for a gross total of $34,500 on The Upper Deck Store's website{3}, are non-disclosed reproductions making them "something that is not what it purports to be"{4} which is one legal definition of -fake-.

The Upper Deck Store is selling these non-disclosed reproductions of Shepard Fairey's original "Kobe" painting and misrepresenting them, with or without intent, as original works of visual art ie., lithographs.


The enclosed monograph not only documents these contentious issues of authenticity but is a fervent attempt to empower the news media, artists and the public to understand the term -print- is generic term, -limited edition- is a vague-ambiguous adjective and lithographs are original works of visual art created by an artist versus reproductions which are not.

























REPRODUCED FROM THE ORIGINAL PAINTING
In a February 10, 2009 email correspondence, a customer service representative, from The Upper Deck Store, confirmed their so-called -Shepard Fairey lithographs- were actually "reproduced from the original painting."{5}

FINE ART LITHOGRAPHS - NOT OFFSET LITHOGRAPHY
Yet, on Shepard Fairey's http://obeygiant.com/headlines/shepard- x-kobe-x-upperdeck website, this so-called lithograph is given the headline "NEW KOBE PRINT OUT NOW!" with the following description by Shepard Fairey: "It does not matter who your favorite team is, if you appreciate style, grace, and power in basketball, then you appreciate Kobe Bryant. I was asked by Upper Deck to do a portrait of Kobe at his request. I knew Kobe from working on the logo for his KB24 website. Kobe is a basketball icon and was a pleasure to be able to create a piece of iconic art of and for him. These prints are tradition fine art lithographs, with beautiful pigment density, they are not offset lithography."

Offset lithographs are original works of visual art created by an artist and printed on an offset lithographic press. Offset lithographs are no different than any other fine art lithograph created by an artist and printed on a hand-pulled press. Shepard Fairey, despite his success and celebrity, does not seem to understand the difference between reproduction and original works of visual art. Otherwise, Shepard Fairey would have never diminished "offset lithography," the same original creative medium ie., lithographs that he portends to have created in.

WHAT IS CONNOISSEURSHIP?
In Paul Duro & Michael Greenhalgh’s published Essential Art History, “connoisseurship” is defined as: “that of the art expert able to distinguish between the authentic and non-authentic, for example between an original and a copy.”{9}























Shepard Fairey 'KOBE', Print Limited to: 1000, Upper Deck Store Exclusive!. $34.99
Here is your chance to own specially commissioned artwork of 2007-08 NBA MVP Kobe Bryant, created exclusively for Upper Deck by Shepard Fairey, one of today's most prominent and influential artists. Noted for creative street art campaigns and iconic pieces of work - his Barack Obama posters were in extremely high demand during president-elect's run for the 2008 Democratic presidential nomination - Shepard Fairey continues to make bold statements through his art. Incorporating a rich mixture of Lakers team colors, the visually stunning off-set print is printed on heavy stock and comes wrapped in craft paper and shipped in a tube. Like other Shepard Fairey art productions, this rare, iconic litho isn't expected to last long. Order now!
http://store.upperdeck.com/Products/Upper+Deck+Default+Catalog/PID-68947.aspx


KOBE OFFSET PRINT-ICONIC LITHO

On their website, The Upper Deck Store is offering for sale an
"offset print"{6} at $34.99 each in an edition "Limited to: 1,000"{7} for gross total of $34,990, that are reproduced from the same Shepard Fairey painting of Kobe with the deceptive description given: "Shepard Fairey continues to make bold statements throught his art" and "rare iconic litho."{8}

As a result, The Upper Deck Store is offering at least for sale two separate "limited" editions of 100 and 1,000 that in totality impeaches the so-called limitation of each other.

So, whether The Upper Deck Store is selling non-disclosed reproductions of Shepard Fairey's paintings for $34.99 or $345 or more each, the abuse of terminology for profit, with or without intent, seems to be pervasive.

WHAT IS A PRINT?
In the art industry, the term -print- is directly or by omission misleading. For example, when someone steps in the mud, they leave a print and when someone has a dirty hand and touches the wall, they leave a print.

So, what is being offered for sale to the public when someone uses a generic term such as -print-, much less a vague and ambiguous adjective like -limited edition-?

If the first thing, the public is told, by Shepard Fairey and Upper Deck Store, -print- doesn’t accurately and fully disclose what it is, how can anyone believe the second thing they are told that it is actually -limited-?

WHAT IS A LITHOGRAPH?
Lithographs first begin as a drawing by the artist on a limestone block, metal plate or mylar. The artist drawn image is the tool, not the artwork. That artist drawn image, ie., tool, is chemically prepared by that artist for printing. That artist drawn image, ie., tool, is then printed by the artist, using an hand-pulled lithographic press, to print their edition of original lithographs.

This factual perspective is confirmed on the International Fine Print Dealers Association`s 2008 website, where -lithography- is defined as: "Literally, `stone drawing,` the artist draws or paints the composition on the flat surface of a stone with a greasy crayon or liquid. The design is chemically fixed on the stone with a weak solution of acid and gum arabic. In printing, the stone is flooded with water which is absorbed everywhere except where repelled by the greasy ink. Oil-based printer`s ink is then rolled on the stone, which is repelled in turn by the water soaked areas and accepted only by the drawn design. The stone is then run through the press with paper under light pressure, the final print showing neither a raised nor embossed quality but lying entirely on the surface of the paper."{10}

In other words, like any original work of visual art, lithographs are created by the artist. The only difference between an artist created and printed lithographs and Shepard Fairey’s created painting, is the lithographic creative medium allows for more than one original.

Yes, that is right, there can be more than one original. Originality has nothing to do with how many but who did it. The artist created it, it is an original.

On the other hand, if the artist did not create it, it is -at best- a reproduction.

This factual perspective is confirmed on page 574 in The Fifth Edition of the Artist`s Handbook of Materials and Techniques by Ralph Mayer, where the author wrote: "The major traditional graphic-arts processes of long standing and continued popularity are lithograph, etching, drypoint, woodcutting or wood engraving, aquatint, and soft-ground etching. ...The term `graphic arts` excludes all forms of mechanically reproduced works photographed or redrawn on plates; all processes in which the artist did not participate to his or her fullest capacity are reproductions."{11}

Unfortunately, the term -offset lithographs- is used by too many in the art industry, much less the public, as an euphemism for reproductions.

WHAT IS A EUPHEMISM?
On page 114 of the Webster’s New World Pocket Dictionary Fourth Edition, -euphemism- is defined as a: “mild word replacing an offensive one.”{12}

Offset lithographs are original works of visual art.

WHAT ARE OFFSET LITHOGRAPHS?
Offset lithographs first begins, just like any lithograph, as a drawing by the artist on a metal plate. The artist drawn image is the tool, not the artwork. That artist drawn image. ie., tool, is chemically prepared by that artist for printing. That artist drawn image. ie., tool, is then printed by the artist, using an offset lithographic press, to print their edition of lithographs.

Like any original work of visual art, lithographs are created by the artist. The only difference between an artist created and printed lithographs and an artist created painting, is the lithographic creative medium allows for more than one original.

On the otherhand, reproductions reproduced on an offset lithographic press are reproductions.

In other words, offset lithographs versus a reproductions are not interchangeable, much less the same.

An offset lithographic press is a tool. How that tool is used determines what comes out of it.

U.S. CUSTOMS INFORMED COMPLIANCE PUBLICATION
This factual perspective is confirmed by U.S. Customs’ May 2006 “Works of Art, Collector’s Pieces Antiques, and Other Cultural Property” An Informed Compliance Publication, which in part, states: “The expression ‘original engravings, prints and lithographs’ means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process.”{13}

On the other hand, reproductions, by there very nature, have no inherent limitation.

WHAT IS A REPRODUCTION?
On page 350 in Ralph Mayer’s HarperCollins Dictionary of Art Terms & Techniques the term -reproduction- is defined as: “A general term for any copy, likeness, or counterpart of an original work of art or of a photograph, done in the same medium as the original or in another, and done by someone other than the creator of the original.”{14}

That “someone other than the creator of the original” are usually called a -printer-.

The printer, who reproduced Shepard Fairey’s artwork, would only be contractually obligated to give the artist what they paid for. For example, the artist paid $1,000 for 1,000 reproductions, they get 1,000 reproductions. All the overruns, plates, negatives, digital files and the like the printer produced would be their -possession-.

WHAT IS POSSESSION?
On page 1183 of the Seventh Edition of Black’s Law Dictionary, -possession- is defined as: “The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.”(15}

PRINTING TRADE CUSTOMS
This factual perspective is confirmed by the Printing Industries of America, Inc. in their published Printing Trade Customs, which, in part, states: “6. PREPARATORY MATERIALS Working mechanical art, type, negatives, positives, flats, plates, and other items when supplied by the printer, shall remain his exclusive property unless otherwise agreed in writing.”{16}

What are those “other items?”

OVERRUNS
Those “other items” are called -overruns-, additional copies of the artist’s artwork, that usually come in the hundreds if not more. The printer just can’t reproduce for example the 1,000 reproductions contracted by the artist because there is never 1,000 good reproductions so they usually reproduce 1,500 or more.

If the printer only reproduced 1,000 reproductions and they were short on 1,000 good reproductions then the printer would have to set up the press for a second run at an additional expense to the printer. That is the last thing a printer wants to do, lose money.

U.S. COPYRIGHT LAW - DERIVATIVE WORK
Under U.S. Copyright Law 103. “Subject matter of copyright: Compilations and derivative work,” in part, it states: “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work.”{17}

In other words, the artist Shepard Fairey, to be sure, owns the copyright to his “material contributed” ie., his painting but would the printer own the copyright to the “derivative work” ie., reproductions they manufactured from it?

The printer contributed, the plates, negatives, digital files and the subsequent contractual run of derivative work ie., reproductions, not to mention those pesky reproduction overruns.

So, if -copyright- “extends to the material contributed by the author of such work,” wouldn’t that also apply to the printer?

U.S. COPYRIGHT LAW - RIGHTS OF ATTRIBUTION
Under U.S. Copyright Law 106A. Rights of Attribution - “shall not apply to any reproduction.”{18}

In other words, those reproductions cannot be attributed to the artist Shepard Fairey who did not reproduce them but if the printer owns a copyright “to the material contributed by the author of such work,” don’t they have all the rights as a copyright holder to the “derivative work” they reproduced?

Therefore, as a copyright holder, couldn’t the printer choose, if they wanted to, to make more "derivative work" ie., reproductions?

Maybe despite these contentious issues surrounding copyright, the printer may never manufacture more reproductions but someday in the near or not so near future, the printer may go out of business or bankrupt and those who acquire the company and the plates, negatives, digital files may not be so magnanimous and decide to reproduce more derivative work ie., reproductions.

So, should any artists, even Shepard Fairey, rely on the good will of a printer or generosity of strangers to protect a copyright for the reproductions, much less trust the future interpretations of the courts to rule in their favor?


Just wait for the artist's knashing of teeth when they find out after paying for the reproduction of their artwork by a printer, that same printer has and claims possession
of the plates-negatives-digital files and overruns.

Then add insult to injury, for the artist to most likely get those -items-, the artist will have to pay the printer more money.

Now, if artist had contractually gotten the printer to return any rights they may have incurred under U.S. Copyright Law back to the artist, then all plates, negatives, digital files, reproductions and the overruns would be owned by the artist.

Additionally, just think if the printer had to rerun the reproductions of the artist’s artwork over again because of some inadvertent flaw, who would own those flawed reproductions?

Remember, regardless what the artist wants to believe, unless otherwise put in writing, the printer is only obiligated to give the artist what they paid for. The overruns and mistakes are the property of the printer and they can do pretty much what they want with them.

How would the artist feel with just one flawed reproduction of his artwork getting into the marketplace, much less a flood of them, influencing the public opinion of their work, much less them as an artist?

That's not to mentioning the so-called -limited edition-, promoted by an artist Shepard Fairey, being impeached.

Before having reproductions made, the artist would have the leverage (to spend or not to spend) with a printer and from my experience the printer will reassign those rights back to the artist, in a heart beat, if they knew to ask.

Most printers just wants the business but if artist doesn’t ask, the printer rarely volunteers.

Let’s give an example of an artist who didn’t follow this advice.

An artist contracted a commercial printer to reproduce their painting. That artist didn’t get those rights incurred by the printer, under U.S. Copyright Law, reassigned back from the printer as recommended to them years earlier.

At the time, they thought it was over the top.

Fast forward years later, upon completion and deliver of those reproductions, this very satisfied artist wanted to reward each of the production crew and president of the printing company with one of those reproductions. In every instance, she was told they had already gotten one and the secretary for the president said he had two.

This artist was devastated that all these nice people at the printer could arbitrarily think they could help themselves to what she -thought- was her work without even asking her.

As a result of this artist’s naivety and that is being generous, this artist’s subsequent promotion of these reproductions as being a “signed and numbered limited edition” was impeached and so was their credibility.

So, if an artist, isn’t proactive in protecting their rights, they have -none-.

An ounce of prevention is worth a pound of cure.


Of course, there is a two edged sword of disclosure involved.

If the artist, like Shepard Fairey, has a contract with the printer, who reproduced their original artwork and reassigned any rights incurred by the printer under U.S. Copyright Law back to the artist then that would be a written admission that the artist knew from the very beginning they were -reproductions- and not -lithographs-.



















Item #: SF-FSD883S, Artist: Shepard Fairey, Title: M-V-P (Single Signed by Shepard Fairey), Size: 20" x 30", Edition: Artist Signed and Numbered, Limited Edition to 100, Medium: Fine Art Lithograph
http://www.gallerydirectart.com/sf-fsd883s.html


KOBE FINE ART LITHOGRAPHS
On the Gallery Direct Art's website, the so-called "Fine Art Lithographs." titled -MVP-, are listed as an "Limited Edition to 100" by "Artist: Shepard Fairey" with S2 Editions Atelier noted as the printer.

EDITIONS AND TOTAL EVER EXPANDING
The only problem with this third edition of so-called "Fine Art Lithographs," promoted as "Limited Edition to 100," is that this same "Kobe" image has already been used in two other separate so-called
lithograph and offset print -Limited editions- to 100 and 1,000 respectively.

That's 1,200 and counting of non-disclosed reproductions reproduced from Shepard Fairey's painting of Kobe. The only thing limited about these editions seems to be full and honest disclosure.


WHO IS S2 EDITIONS ATELIER?
Gallery Direct Art gives, on their website, the following description for - S2 Editions Atelier-: "A world leader in limited-edition, fine art lithography, S2 works with artists and master printers to create meticulously crafted, limited-edition lithographs hand pulled on antique lithography presses. Each limited edition lithograph was crafted by hand on rare 19th century Voirin Presses at the prestigious S2 Atelier. These presses utilize numerous separate plates and print only one color at a time; thus producing the finest quality lithographs possible."(19)

FAIREY CREATED LITHOGRAPH OF HIS FRIEND
On the S2 Edition Atelier's website, in a posted bio for Shepard Fairey, it states: "In 2008, Fairey created a limited edition lithograph of his friend Kobe Bryant - who considers Fairey his favorite artist - in celebration of Bryant's acquisition of the NBA Most Valuable Player award fo 2007-2008."{20}

ASKED BY UPPER DECK TO DO A PORTRAIT
Remember as noted earlier, Shepard Fairey admits he was "asked by Upper Deck to do a portrait of Kobe."

AN IMAGE IS CHOSEN, A PAINTING
On their website, S2 Editions Atelier states: "An image is chosen, a painting or other unique work—or an entirely new image is created on press. Size is determined and often a color print is made to the size of the final lithograph. The press to be used is determined by overall size of the final lithograph and the number of colors the lithograph will require."

First, lithographs are original works of visual art that would never be trivialized as being a copy of anything, much less a painting. Second, how can you have a "color print" made the size of the final lithograph when the final lithograph has not even been yet created by the artist?

ARTIST, CHROMIST AND MASTER PRINTER ESTIMATE
Additionally, on their website, S2 Editions Atelier states: "The Artist, Chromist, and Master Printer estimate the number of different colors that will be used to create the final image. Each part of the process is analyzed, from paper stock to the number of times the image will pass through the presses. The paper is handmade, generally in Paris."



WHAT IS A CHROMIST?
This can be answered in a July 16, 2009 email by S2 Art Group Communication Coordinator Jeremiah Leif Johnson. In response to the following question: "Are your "Lautrec lithographs," chromist-made reproductions and/or photomechanically reproduced?," he stated: "Our lithographs are indeed chromist-made recreations, and that includes all lithographs available in our galleries. There are a select few editions for contemporary artists in which we have experimented with a variety of media, but most of these were painstakingly created in the traditional manner. There is some minor speculation that at least one of our presses may have been among those that Toulouse-Lautrec himself used, but, alas, there is little evidence to back this up. It is a pretty thought, however!"

SAME MACHINES USED IN THE LEGENDARY 19TH CENTURY
Yet, S2 Editions Atelier would have you believe otherwise on their http://www.s2art.com/s2atelier.php website that their presses are: "Originally powered by steam and later converted to electricity, these gorgeous flatbed presses are the same machines used in the legendary 19th and early 20th Century ateliers of Paris to produce original works of lithographic multiple fine art by great masters such as Alphonse Mucha, Henri Toulouse-Lautrec, Pablo Picasso, Marc Chagall, Joan Miró, Henri Matisse, Alexander Calder and many more."

Why would S2 Editions Atelier give away their credibility so frivolously by admitting to embellishing the provenance of their presses?

WHAT IS A FORGERY?
On page 661 of the Seventh Edition of Black's Law Dictionary, -forgery- is defined as: "The act of fraudulently making a false document or altering a real one to be used as if geniune."









Title: May Belfort, Artist: Toulouse-Lautrec, Medium: Lithograph, Edition Size: Open, Image Size: 23 3/4 in. x 31 in, Code: REL564, Unframed Price: $250
http://www.s2art.com/page.php?page=product&type=collection&set=&ID=&sortBy=&artistID=0&productTypeID=0&collectionID=36&PGNUM=1&artworkID=1629&subtype=

TOULOUSE LAUTREC (d 1901)

Toulouse Lautrec died in 1901, just a few year into the 20th-century. So, how in the 21st-century, could a dead artist, a S2 Edition Atelier "Chromist, and Master Printer estimate the number of different colors that will be used to create the final image."

When in the 21st-century, S2 Edition Atelier and their chromist-forged images, falsely attributed to and sold as -Toulouse Lautrec lithographs-, is that "The act of fraudulently making a false document or altering a real one to be used as if geniune?"

If any artist Shepard Fairey or chromist/printer S2 Editions Atelier promotes reproductions as anything other than as reproductions that would be deceptive but when offered for sale from $34.95 to $345 or more each, would that become “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”{21} which is one legal definition of -fraud-?


Remember, original works of visual art ie., lithographs created by an artist and reproductions of original works of visual art not done by artist are not interchangeable, much less the same.

Without full and honest disclosure, much less conniosseurship by those in the art industry, how can the consumer give informed consent on whether to purchase a reproduction, much less a non-disclosed forgery?

On page 127 of the Seventh Edition of Black's Law Dictionary, -authentication- is defined as: "Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence."{22}

UPPER DECK STORE AUTHENTIC GUARANTEED
So, is the public to just believe or suspend disbelief when on -The Upper Deck Store Authentic Guaranteed- website, it states: "Upper Deck dedicates more resources than any other sports collectibles and memorabilia company to ensure the authenticity of its products?"{23}

SHEPARD FAIREY - CALIFORNIA RESIDENT
Shepard Fairey's website list the following address: Obey Giant Art, PO BOX 26897, LA, CA 90026."{24}

CALIFORNIA CIVIL CODE
California Civil Code 17.38 to 17.45 requires disclosure of reproductions as reproductions if sold for $100 or more. Specifically, California Civil Code 1741 states: “This title shall apply to any fine art multiple when offered for sale or sold at wholesale or retail for one hundred dollars ($100) or more, exclusive of any frame” with California Civil Code 1742(b) stating: “This law requires disclosure - whether the multiple is a reproduction.”{25}

So, is the California resident Shepard Fairey, much less his representatives, disclosing reproductions of his preexisting works of visual art ie., paintings that may offer for sale as: -reproductions-, whether or not they may be sold for $100 or more?

UPPER DECK HEADQUARTERS - CALIFORNIA
The Upper Deck Store's website, is operated out of the Carlsbad, California.{26}

The potential penalties for violation of California Civil Code statutes may include but not limited to -refund - interest - treble damages - court costs - expert witness fees - attorney fees- and a possible $1,000 fine per occurrence.

FOOTNOTES:
1.http://store.upperdeck.com/Products/Upper+Deck+Default+Catalog/PID-67406.aspx
2. Ibid
3. Ibid
4. p. 618, Seventh Edition of Black’s Law Dictionary, ISBN 0-314-22864-0
5. Marco Depaul, The Upper Deck Company, 985 Trade Drive, Las Vegas, Nv. 89030, 1-800-551-8220, (702) 633-0685
6.http://store.upperdeck.com/Products/Upper+Deck+Default+Catalog/PID-68947.aspx
7. Ibid
8. Ibid
9.
rubens.anu.edu.au/htdocs/teach/eah/ImageServe
10. www.printdealers.com/learn.cfm
11. ISBN 0-670-83701-6
12. ISBN 0-7645-6147-2
13.http://www.cbp.gov/xp/cgov/trade/legal/informed_compliance_pubs/
14. ISBN 0-06-461012-8 (pbk.)
15. ISBN 0-314-22864-0
16.www.evergreencustomprinting.com/files/PrintingTradeCustoms.pdf
17. www.copyright.gov
18. Ibid
19. http://www.gallerydirectart.com/sf-fsd883s.html
20. http://www.s2art.com/page.php?page=Artist-Landing&artistID=220
21. p 670, Seventh Edition of Black's Law Dictionary, ISBN 0-314-22864-0
22. p 127, Ibid
23. http://store.upperdeck.com/help/companyinfo.aspx
24. http://obeygiant.com/contact
25. http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=civ&codebody=&hits=20
26. http://store.upperdeck.com/help/companyinfo.aspx

1 Comments:

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7:30 AM, August 13, 2018  

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