Shepard Fairey Sues AP Over Obama Photo Copyright

NEW YORK — An artist who created a famous image of Barack Obama before he became president sued The Associated Press on Monday, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.

The lawsuit filed in U.S. District Court in Manhattan said street artist Shepard Fairey did not violate the copyright of the April 2006 photograph because he dramatically changed the nature of the image.

The AP has said it is owed credit and compensation for the artist's rendition of the picture, taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington.

Lawyers for Fairey acknowledged that the artist used the photograph. But they said he transformed the literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."

AP spokesman Paul Colford said the AP was "disappointed by the surprise filing."

He said in a statement that the AP had agreed last week not to take legal action while it was in settlement talks, but that Fairey's attorney broke off contact Friday.

Colford said the AP had indicated that any settlement would benefit a charitable fund that supports AP journalists worldwide who suffer personal loss from natural disasters and conflicts.

"AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others," Colford said.

The AP has not taken legal action against Fairey. But his lawsuit noted that the AP had threatened twice to sue Fairey, possibly as early as Tuesday, and that it considered all works that incorporate the imagery of the "Obama Hope" poster to be infringements of its copyrights.

The lawsuit said the purpose of the photograph documented the day's events while Fairey's art, titled "Obama Progress" and "Obama Hope," was meant "to inspire, convince and convey the power of Obama's ideals, as well as his potential as a leader, through graphic metaphor."

Fairey's image became popular on buttons, posters and Web sites. It showed a pensive Barack Obama looking upward. It was splashed in a Warholesque red, white and blue and underlined with the caption HOPE.

The lawsuit noted that Fairey first began distributing his Obama images in early 2008 and that Obama thanked him in a Feb. 22 letter for his contribution to the presidential campaign.

When asked Monday about AP's position, Fairey said: "It's a suppression of an artist's freedom of expression." His attorney advised him not to say anything else.

The lawsuit was brought on Fairey's behalf by the Stanford Law School's Fair Use Project and a San Francisco-based law firm.

"There should be no doubt about the legality of Fairey's work," said Anthony Falzone, executive director of the Fair Use Project. "He used the photograph for a purpose entirely different than the original, and transformed it dramatically."

The lawsuit was filed on the same day that Fairey appeared in two different Boston courtrooms, where he pleaded not guilty to charges he tagged property with graffiti.

He allegedly vandalized a Massachusetts Turnpike Authority building last month as part of one of his street art campaigns. Fairey also pleaded not guilty Monday to a charge of placing a poster on a Boston electrical box in September 2000. Boston police said he had failed to appear in court in the 9-year-old case days after his arrest.

The 38-year-old Los Angeles resident was arrested Friday when he was in Boston for an event kicking off his exhibit at the Institute of Contemporary Art. At the time of the arrest, detectives were aware that Fairey had failed to appear in court in 2000, said Jake Wark, a spokesman for the Suffolk County district attorney's office.

Fairey was ordered to return to court on the Boston charges for pre-trial hearings on March 10 and 11.

"I'd love to be able to feel like the culture of Boston continues to encourage freedom of expression," Fairey said after Monday's hearings. "If that's not going to be the case, I'll deal with that."

___

Associated Press writer Russell Contreras contributed to this report from Boston.

Comments

[SimJack]

11:49 AM on 02/11/2009

Next some small minded sphincter lawyers will copyright the alphabet and charge us a nickle a letter for everything we type. Sod off AP and other members of your despicable ilk.

[mzzanthrope]

09:38 AM on 02/10/2009

He clearly infringed on AP's copyright. Anyone with a little bit of photoshop skills could end up with the same result as this artist. If it were a truly unique/ori­ginal interpreta­tion of the shot, I might be impressed. But he took a photograph­er's work and a Warhol technique , and came up with something not really all that inspired. However, AP has been hijacking photograph­er's rights to their own images for years, including freelancer­'s work. I have little sympathy for either.

[zola77]

07:19 PM on 02/10/2009

he did not infringe copyright laws..fair use states the facts explicitly­. Its the Same principle for Warhol's work.

For goodness sake, the guy that actually took the picture doesnt like what the AP is doing with shepard...­!

says a lot about AP's corporate greed.

[mnDem]

03:31 AM on 02/10/2009

HELLO! ANDY WARHOL!!!!­!!!! Does he own newspapers money too?

This is non-sense.

[atomic]

03:04 AM on 02/10/2009

You want to talk about how the ruling elite control operate ... why was Fairey arrested right after he brought a counter suit to the AP. There are several ways to control a population so that they remain in fear and ignorant ... the AP is run by elite families who's business it is to direct the conversati­on.

[taddles]

01:16 AM on 02/10/2009

The AP can piss off, the photo was dramatical­ly changed. This would be like someone coming after Warhol for his Marilyn Monroe photo montage. Utter BS.

[kroses98]

12:48 AM on 02/10/2009

The anti-Obama AP did everything they could do to bring him down. Since they could not do that, they are now trying to make money off of his image. I predict that it will not work. Their picture is a complete "DUD!"

[UsofA]

11:02 PM on 02/09/2009

You go on with your bad self, Shepard. Show the AP what one man, armed with character and ethics, can do. Change, indeed.

[jcwtts1]

10:42 PM on 02/09/2009

Gotta tell you, I think this meets the fair use standard. It isn't the photo that is inspiring and it isn't the phote that made the campaign use it. It is the push from realism back towards something less defined. It made me think of both America and the melting pot I grew up with, it made me see more than skin color and into a core set of ideals. I guess that is it, ideal or archetypal rendering rather than an actual photograph­. I love it and have a couple of the posters but the photo isn't the art work.

J

[mjb5406]

10:23 PM on 02/09/2009

The AP is "disappoin­ted by the surprise filing". Of course they are... Fairey decided to fight back and they expected him, as the "David" in "David vs. Goliath", to simply roll over and comply. It's great that not only is Fairey fighting back, but that some respected institutio­ns are representi­ng him. The AP, starving for cash after many of its member newspapers have bailed on them, are desperate to get whatever compensati­on they can.

[lthuedk 1]

10:39 AM on 02/10/2009

Malicious prosecutio­n? Careful boys and girls.

If someone copied my images, then simply changed the colour, they'd get a process server at their door before their next crap. The actual artist here was the photograph­er who caught the moment, the expression­, and character of Obama. That was the critical element that, in it's absence, would not have yielded the moving image in the first place under any colour scheme.

Fairey profited from someone else's Fair Use image. That's a no-no. And yes, I am an artist who works from the concept to finished piece. And although I might rarely use photos for integrativ­e processing­, they cannot take on any more importance than any other note taking method, or drawing-in fact much, much less. My best integratio­ns are done entirely from the memories of many, many images, including interviews and whatever lies underneath and inside the character.

Re-colouri­ng one image that belongs to another author is far from clean, first surface creativity­.

Know this: I size my Fair Use imagery large so that they CAN be used legitimate­ly by such entities as the National Archives or the House Informatio­n System or the hundreds of colleges and universiti­es that have visited my site. I expect and encourage the sharing of my work within the Fair Use framework, including printer copies in the office or classroom for distributi­on. But make a dime on my efforts and you will receive a well-earne­d lawsuit.

[Principaldad]

04:42 PM on 02/10/2009

Look carefully at both the photograph and the poster. Do you honestly conclude that only the color has changed? I have done profession­al photograph­y work and I can see a broad range of deliberate changes aside from the color. The "moment" is virtually eliminated and the expression and character is idealized. The background is gone and the gaze has changed. The end result is unique enough that one researcher originally thought he had found that a different photo was used.

[ohjodi]

09:44 PM on 02/09/2009

There would be no questions, no debates, no lawsuits, if people would recall Andy Warhol.

Warhol did the same thing with photos and brand images that were not his own.

Why doesn't anyone mention Warhol?

[voltage356]

10:16 PM on 02/09/2009

Campbell soup anyone.

[eclectablog]

11:01 PM on 02/09/2009

Maybe because Warhol didn't steal another artist's work?

[gretchenart]

09:33 PM on 02/09/2009

As an artist who utilizes a mixed media approach combining traditiona­l media with new technologi­es, I feel this is a very important case in order to set some clear legal precedents­. The law has not been clear enough for a very long time as to exactly what conditions constitute fair use and how much change to an image is "enough" to be "transform­ative"! In the meantime, I primarily use my own photos and may add brushstrok­es from various paintings clearly in the Public domain (i.e. those 75 years after the artist's death). Otherwise, I may use my clients' photos with their permission­. (as in cases where I add a painting to my collection and offer it to the public, I get authorizat­ion beforehand from the client who provided the photo and for whom I designed the original.)

My understand­ing of the original Obama photo is that it was transforme­d quite a bit and that the photo being shown as the "original" is not actually the real original but has been flipped to look like the exact same image compositio­n that Fairley used, minimizing the efforts and techniques used by the artist overall.

[liberalsrheros]

09:59 PM on 02/09/2009

i have the utmost respect for the way you conduct yourself and honor other's artist work.

flipping the photo really doesn't transform it. the original photo captured a defining moment that speaks to obama's thoughtful­ness and our hope in his abilities. i fail to see how fairey has transforme­d or improved the message.

[eclectablog]

11:03 PM on 02/09/2009

I completely agree with you, liberalsrh­eros. What blows my mind is that Fairey is so cavalier about his theft of another artist's work. You'd think he'd have a little more respect for a fellow artist.

[mlaiuppa]

03:38 PM on 02/10/2009

Take the original photo and then try to duplicate Fairey's work. Then tell me how easy it was and how little you did to do it.

[mocha59]

09:13 PM on 02/09/2009

Stay strong, Shep!

[Solange]

07:47 PM on 02/09/2009

Didn"t Rupert Murdoch, who also owns FOX News, purchase the AP last year? If so, consider the source...

[SFkid]

07:47 PM on 02/09/2009

"stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."

Laying it on a little thick don't ya think? Any competent graphic designer could have done this poster.

[thinkagain2]

07:58 PM on 02/09/2009

but they didn't. and no, this has a power that goes beyond photoshop. You have to look at it in detail, the collage pieces melded into the whole. He took a nice photo and turned it into an iconic piece that will be, I believe, one of the most remembered pieces of early 21st century art. Its like a good song that sticks in everyones head and becomes the soundtrack for a million different life experience­s. That, pal, is art.

[Principaldad]

08:07 PM on 02/09/2009

Then why didn't they?

I myself have the technical skills and software to produce this work. That does not mean I could independen­tly conceive to modify the image in the ways that Fairey has.

There is a reason that the image has become so popular. It is stunning and emotive. The look into the distance conveys meaning. The modificati­ons to the facial features and shoulders give an idealized feeling of strength.

[Daughter]

07:42 PM on 02/09/2009

"Garcia says he worked for the Associated Press as a temporary Washington photograph­er for six weeks in 2006. He says he was not considered a staff member, and that he has never signed an AP freelancer agreement because he doesn’t approve of the terms in the contract. Asked if this punches a hole in the AP’s copyright claim, Garcia said yes. "

http://www­.pdnonline­.com/pdn/c­ontent_dis­play/photo­-news/lega­l-news/e3i­b47a6c2183­51ced32332­20e49cf1bb­29?imw=Y