The ever-escalating legal fight between Shepard Fairey and the Associated Press took another turn this week, as Fairey’s attorneys argued that the AP has "unclean hands," since it claims copyright ownership over works by Fairey and other artists.

Earlier this year the AP sued Fairey for copyright infringement for using an AP photo without permission as the basis for his famous Barack Obama campaign poster.

Now, using a legal defense called the “doctrine of unclean hands,” Fairey argues that the AP has followed the same practice of which it now accuses Fairey.

“The AP claims copyright ownership in, and makes commercial use of, many photographs that consist almost entirely of copyrighted artwork of Fairey and other artists without permission,” Fairey’s attorneys write in an answer filed April 14.

The latest filing by Fairey’s attorneys includes 12 examples of images from the AP photo archive that show other works of art, including depictions of Fairey’s Obama poster.

Showing works of art in news reports is generally considered legal under the fair use provision of the Copyright Law, which allows reproduction of copyrighted works “for purposes such as ... news reporting” under certain conditions.

The dispute began in February, after bloggers identified the likely source photo for Fairey’s poster. The AP said it considered Fairey’s poster a copyright violation, then Fairey filed a preemptive lawsuit against the AP on February 9. The AP answered the lawsuit on March 11, accusing Fairey of infringement. Fairey and his attorneys say the use of an AP photo as a visual reference for the Obama poster is fair use and protected by the First Amendment.



In a statement issued April 16, the Associated Press said it was still reviewing the Fairey filing, but said, "it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP’s copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities."

The AP statement continues, "Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used.  We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP’s Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works."

Fairey's attorney, Anthony Falzone, later responded to the AP statement on his blog, saying the AP "misses the point." Falone writes, "The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way."

Fairey and the AP remain in disagreement over a basic fact of the case: Which photo was the basis for Fairey’s Obama poster? The AP—backed by bloggers who first noticed the similarities and computer software that matches similar images—says it was a tight shot of Obama. Fairey’s lawsuit says it was a different, wider photograph that also included actor George Clooney. Both images were shot by photographer Mannie Garcia in 2006.

The Fairey case is one of two significant fair use cases involving photography and art now pending in the U.S. District Court Southern District of New York. Photographer Patrick Cariou has sued artist Richard Prince, an art gallery and a book publisher, saying Prince illegally used his copyrighted photographs.

Update, April 16: An earlier version of this story said Fairey accused the AP of being guilty of infringement. Fairey's attorney, Anthony Falzone, disputes that characterization. Several sentences of this story have been changed to use more neutral language.

Related stories
March 11: AP Answers Shepard Fairey Lawsuit, Accuses Artist of Infringement
February 9: Shepard Fairey Sues AP Over Obama Poster Dispute
February 5: Obama Poster Photographer Doesn’t Want To Fight Shepard Fairey
February 4: AP Claims Shepard Fairey's Obama Poster Infringes on Copyright