Artist Shepard Fairey has sued the Associated Press in federal court in New York, seeking a declaration that his famous "Obama Hope" poster does not infringe the AP's alleged copyright in a photograph, and is protected by the fair use doctrine. Fairey, who sued along with his company, Obey Giant Art, Inc., also seeks an injunction "enjoining Defendant AP and its agents from asserting its copyrights against Fairey, Obey Giant, or any other party in possession of the works at issue." One interesting fact I didn't know: Obama himself has praised Fariey's art. According to the complaint:
In a February 22, 2008 letter to Fairey, Obama thanked Fairey for his contribution to Obama’s campaign. In that letter, Obama remarked that “[t]he political messages involved in your work have encouraged Americans to believe they can help change the stauts quo. . . . Your images have a profound effect on people, whether seen in a gallery or on a stop sign.”Fairey v. AP Complaint
This is going to be very interesting. From the press release:
The Fair Use Project at Stanford Law School’s Center for Internet and Society and San Francisco-based Durie Tangri Lemley Roberts & Kent LLP filed a lawsuit today against the Associated Press (AP) on behalf of Shepard Fairey and his production company Obey Giant Art, Inc. in connection with the series of iconic works Fairey created to support the candidacy of President Barack Obama.
Last week, the AP accused Fairey of infringing copyrights it says it holds in a photograph that was taken of Barack Obama by photographer Mannie Garcia at the National Press Club in 2006. The lawsuit, filed in the U.S. District Court for the Southern District of New York, seeks a declaration from the Court holding that Fairey did not infringe AP’s copyrights in creating the now-famous Obama Hope poster and other related works, as well as an injunction against further assertion of copyrights by the AP against Fairey or anyone else who displays his work.
“There should be no doubt about the legality of Fairey's work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at 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. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.”
In January 2008, Fairey created Obama Hope with the encouragement of then presidential candidate Barack Obama’s campaign. The now ubiquitous poster features an abstracted graphic rendition of Obama gazing up and to the viewer’s right, colored in a palette of red, white and blue with the word “hope” in capital letters placed below the image of Obama. In creating Obama Hope, Fairey used a photograph of Obama as a visual reference. That photograph was taken at the National Press Club in April 2006 during a panel discussion about the humanitarian crisis in Darfur. In it, Obama is looking up and to his left at a speaker with actor George Clooney seated next to Obama. While Fairey was unsure who took the photograph when he used it, the photograph has been credited to award-winning freelance photographer Mannie Garcia.
“My goal was to express visually the qualities that drew me and so many others to Obama as a candidate,” explained Shepard Fairey. “I wanted to convey the ideals I felt he stood for, and his potential as a leader. I tried to distill those qualities with an abstracted and idealized image in the hope it would become a vehicle to inspire and convince others. I think the Obama Hope poster resonated because it did capture those qualities on some level, and provided a common social expression of them.”
Early on, Fairey explained that he had used a photograph as a visual reference in creating the illustration of Obama for the Obama Hope poster but did not identify the photograph. In the days leading up to Obama’s inauguration, there was extensive speculation about which specific photo was used. After bloggers declared it was an AP photograph taken by Mannie Garcia, the AP contacted Fairey’s production studio, asserting Fairey’s work infringed its copyrights. In later public statements, AP suggested its rights extend to other examples of Fairey’s work, including the Obama Hope Stencil Collage hanging in the National Portrait Gallery. AP also stated it would sue Fairey if he did not resolve the matter to its satisfaction.
“Artists whose work is transformative—especially a visual artist like Shepard Fairey whose work offers public critique of politicians and world leaders, past and present—should not have their artistic freedom threatened by improper use of the copyright laws,” said Mark Lemley, professor at Stanford Law School and partner at Durie Tangri Lemley Roberts & Kent LLP.