A closer look at the controversial billboard in downtown Phoenix criticizing President Donald Trump raises questions over whether the design adheres to copyright law.
It features the work of three others, but the billboard artist only has publicly credited one.
Santa Monica, Calif., artist and activist Karen Fiorito’s billboard went up near Grand Avenue and Taylor Street in downtown Phoenix on March 17 and immediately drew worldwide attention.
Fiorito’s design features a Trump photo from CNN, a mushroom cloud depicting a clown’s face from a German designer, and symbols of dollar signs imitating Nazi swastikas that were designed by Fiorito’s friend.
Fiorito contends her use of the materials is “fair use” and appropriate. Fair use is an exception to American law that allows people to use copyrighted material without permission under certain conditions.
Paul Bender, a longtime professor of law at Arizona State University, offered another point of view.
“If you copy something, that’s copyright infringement unless it’s fair use,” he said. “In this situation, there are three main elements and she takes them all from other people. The fact that she changed it a little bit does not insulate her from liability.”
About the design elements
German designer Thomas Mangold designed the “PS3 Mushroom Clown” with advertising agency TBWA France for Sony, which used the design as an advertisement for its PlayStation 3. The ad won three awards at the International ANDY Awards in 2008.
His design of a mushroom cloud shaped as a laughing clown is featured twice in Fiorito’s billboard, one on each side of Trump.
Mangold told The Arizona Republic that he owns the copyright for the image and that he did not give permission for his design to be used on the billboard.
He declined to comment further on the matter, saying he did not want to be mixed up in a discussion about the artwork.
Fiorito has told multiple news outlets and posted online giving credit to artist Hugh Gran for designing the swastika dollar signs.
Gran confirmed to The Republic that Fiorito asked to use his design for the piece. “I was happy to say yes,” he said.
The billboard also features a photo of Trump that was taken by Nigel Parry for CNN.
The Republic contacted Parry, CNN, Sony Interactive Entertainment, PlayStation and TBWA France for comment but did not hear back.
Fiorito: ‘I have obeyed every law’
Fiorito told The Republic in an email that her design follows the law.
“It is ‘fair use’ since Google deemed it ‘Use with modification’ with (sic) is exactly what I did. I have obeyed every law. (There are) no grounds for a suit, especially since we have not made any profit from this project,” she wrote. She did not reply to further questions.
“I don’t think that’s going to make it fair use that alone, that she’s not profiting from it,” Bender said. “It’s not that all noncommercial things are fair use. It’s gotta be something else, there’s some reason to it, you have to do it in order to make a point you’re making.
“Like if you’re writing a review of a book, you can copy the book to say what you’re reviewing,” Bender said. “Just taking an artist’s work and using it in your billboard? I don’t think that would be fair use.”
If any of the involved parties choose to take legal action, there are three possible courses of action: The owners of the design elements could sue Fiorito, file an injunction to have the billboard taken down, or work out a deal to give her permission to use the works, according to Bender.
Bender added that any litigation could be complicated by the fact that the clouds’ copyright owner is in Germany.
Billboard owner: People just want us to remove it
The billboard was commissioned by La Melgosa LCC, which is owned by longtime Grand Avenue champions Beatrice Moore and Tony Zahn. Moore said the billboard is on land owned by La Melgosa LLC.
“There’s a lot of people who want to force us to take the billboard down and they’re trying every avenue they can to do that,” Moore said.
Moore said she was not involved in Fiorito’s design for the billboard.
“It’s ironic to me that everybody says ‘free speech’ and yet when it’s somebody else’s free speech, then they don’t think that applies. So if you’re going to have free speech, it has to be across the board,” Moore said.
Fiorito has been the target of harassment and death threats since the billboard went up.
“It shows what an artist has to go through in order to make a political statement,” Moore said. “Also just the importance of standing up and speaking out, and how an artist has to really stand up to some really pretty extreme views and, at times, risk their life actually to speak up.”