An artist who admits using an AP photo of Barack Obama as the basis for his “Obama Hope” poster used in the campaign claims that his depiction of Obama was radically different from the photo and should be allowed under the “fair use doctrine”. -DB
Stanford News Service
Feb.12, 2009
The artist who created one of the best-known images from Barack Obama’s presidential campaign is suing The Associated Press with the help of the Fair Use Project at Stanford Law School.
The AP accused the artist, Shepard Fairey, of copyright infringement last week. The news cooperative said Fairey wrongly used an AP photograph as the basis of his “Obama Hope” poster—an image showing the candidate looking up and to his left, his face shaded in red, white and blue. The word “hope” crosses his chest in capital letters.
Fairey has acknowledged basing his work on the photograph, taken for the AP in April 2006 by Mannie Garcia.
The AP has not taken legal action against Fairey, but the artist said he’s been threatened with a lawsuit.
Fairey’s lawsuit, filed earlier this week in U.S. District Court in New York by the Fair Use Project and the San Francisco law firm Durie Tangri Lemley Roberts & Kent, seeks a declaration that the artist did not infringe AP’s copyrights in creating the poster and other related works. The lawsuit also requests an injunction against further assertion of copyrights by the AP against Fairey or anyone else who displays his work.
“Fairey did not do anything wrong,” said Julie Ahrens, associate director of the Fair Use Project. “He should not have to put up with misguided threats from the AP.”
In a statement posted on the AP’s website, spokesman Paul Colford said the news organization is “disappointed by the surprise filing” and Fairey’s “failure to recognize the rights of photographers in their works.”
Colford said the AP was in settlement talks with Fairey’s lawyers last week, but his lawyers broke off contact over the weekend.
“There should be no doubt about the legality of Fairey’s work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer at the Stanford Law School, who is leading Fairey’s legal team. “He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey’s poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph.”
AP Statement on Shepard Fairey Lawsuit
Feb. 9, 2009
The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company, and by Mr. Fairey’s failure to recognize the rights of photographers in their works. AP was in the middle of settlement discussions with Mr. Fairey’s attorney last week in order to resolve this amicably, and made it clear that a settlement would benefit the AP Emergency Relief Fund, a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts.
At Mr. Fairey’s attorney’s request, we agreed AP would not pursue legal action while in these discussions. Despite an agreement to continue these discussions on Friday, Mr. Fairey’s attorney avoided contact, nor did he respond to an invitation to make contact over the weekend. Instead, he chose to file on Monday morning, without any notice to AP.
AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP.
Paul Colford
Director of Media Relations
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