Fairey says the Associated Press image at left, by Mannie Garcia, was the basis for his Obama poster illustration, but that its use falls under the Fair Use Provision.
Talks between graphic artist
Shepard Fairey and the Associated Press have boiled over into a lawsuit.
A suit filed by Fairey and his company, Obey Giant, seeks a decision affirming that his use of a news photograph as the basis for a graphical poster of
Barack Obama is protected by the Fair Use Doctrine.
Fairey filed the suit February 9 in U.S. District Court, Southern District of New York. The suit is unusual given that the Associated Press
accused Fairey of copyright infringement last week and would be the logical party to file a suit. According to Fairey’s lawsuit, the Associated Press attorney had warned the AP planned to sue Fairey on February 10.
Hours after the suit was filed, the AP said Fairey’s filing was a “surprise” and that the AP was in the middle of settlement discussions with Fairey’s attorney. “At Mr. Fairey's attorney's request, we agreed AP would not pursue legal action while in these discussions,” AP spokesperson
Paul Colford said in a statement.
The statement also repeated the AP’s position: “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.”
Fairey is represented by
Anthony T. Falzone of the Stanford Law School Center for Internet and Society, and the San Francisco law firm of Durie Tangri Lemley Roberts & Kent.
Fairey's suit acknowledges that the source image for Fairey’s celebrated Obama campaign poster was a photograph shot by
Mannie Garcia at the National Press Club in April 2006. The suit says the original photo was not the cropped version of Garcia’s photo widely seen recently on blogs, but a wider version of the photo that included actor
George Clooney.
The
fair use provision of the copyright law allows copyrighted works to be reproduced under certain circumstances, including criticism, comment, news reporting and in educational materials. Factors judges consider when determining fair use include what portion of a copyrighted work is used in the copy, and how the copying affects the market value of the original.
In making the case for Fair Use, Fairey’s lawsuit says the purpose of the original photograph was to document events, while the purpose of Fairey’s posters is “to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader, through graphic metaphor.”
Fairey’s lawsuit argues:
- “Fairey used the Garcia Photograph as a visual reference for a highly transformative purpose; Fairey altered the original with new meaning, new expression, and new messages; and Fairey did not create any of the Obama Works for the sake of commercial gain.”
- “The Garcia Photograph had been published well before Fairey used it as a visual reference, and is a factual, not fictional or highly creative, work.”
- “Fairey used only a portion of the Garcia Photograph, and the portion he used was reasonable in light of Fairey’s expressive purpose.”
- “Fairey’s use of the Garcia Photograph imposed no significant or cognizable harm to the value of the Garcia Photograph or any market for it or any derivatives; on the contrary, Fairey has enhanced the value of the Garcia photograph beyond measure.”
Fairey’s suit does not seek specific monetary damages. It asks for declarations that Fairey’s works do not infringe on AP’s copyrights and an injunction preventing the AP from making copyright against Fairey, Obey Giant, and parties in possession of Fairey’s Obama posters.
Fairey’s posters have been lauded by many, including Obama, and now hang in the Smithsonian Institution and the Institute for Contemporary Art in Boston.
Fairey began distributing his Obama posters in January 2008, but the source photograph was not widely known until a year later, when bloggers located two photographs that were similar to the poster, and deduced that Garcia’s photograph was a near-perfect match.
Garcia, the photographer, said he did not realize Fairey had used his photograph until the day of the Obama inauguration last month. He said last week that he is proud of his photograph but does not want to fight Fairey.
Separately, news media in Boston reported that Fairey was to be arraigned February 9 on charges of defacing property. Fairey has been arrested many times for posting his artwork in public places.
Source document
Read the lawsuit on PDNPulse
Related stories
Feb. 5, 2009: Obama Poster Photographer Doesn’t Want To Fight Shepard Fairey
Feb. 4, 2009: AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
