Monday, February 9, 2009

Shepard Fairey sues AP over Obama poster; seeks declaratory judgment of noninfringement


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.


  1. I didn't get through the entire post (having just seen The Reader, I prefer to have everything narrated for me by a German teenager) but I did see Mark Lemley's quote at the end.

    What the hell, Lemley? "Artistic freedom threatened?" "Improper use of the copyright laws?" "Public critique of politicians?" "Whose?" Bear in mind, this was not a "critique" of Obama, but a campaign poster. Fairey could easily have gotten another photo from the candidate's people, replete with permission to use it. Instead he appropriated another "artist's" work.

    Now if you'll excuse me, I'm going to sign my name on some Fairey prints and sell them as my original work. That's cool, right?

  2. (1) Thank goodness that Fairey has some decent litigators working for him (to avoid the Tenenbaum mess)... except, it appears that none of the signatories is admitted to SDNY; I haven't looked at the local rules, but I would guess that you'd need local counsel if you wan to appear PHV... please say this isn't the first of many gaffes.

    (2) You probably know better that I Ben-- was the decision to file in SDNY made strategically (i.e. there is better Fair Use precedent there than in, say, NDCA) or simply because the AP is headquartered in NYC and they didn't want a venue fight? I would think deciding the venue would be a HUGE decision.

    (4) Count I of the dec action doesn't specifically spell it out, but do you think that Plaintiff is going to seek a specific declaration that the AP does not own the copyrights in the image? To me, based upon what I've read, that seems to be the easiest way for them to win, and fairly easy to plead based upon information and belief.

    (4) JDC above -- Lemley's noticing the TRANSFORMATIVE nature of the work, which some commentators (not necessarily here at C&C) believe is nearly determinative of the fair use issue. Fairey did not simply put is signature on someone else's prints... he created a new work of art. The question is whether it's "derivative" (and thus infringing of the AP photo) or whether its use of the previous work is "fair."

    Kyle K.

  3. 1) Julie Ahrens from the Stanford Fair Use Center, who is listed as one of Fairey's attorneys, is admitted in NY.

    2) Just a guess, but I suspect that filing in the SDNY was strategic. There have been some strong pro-fair-use cases in the 2d Circuit recently, including the Bill Graham Archives case and, more directly on point, Blanch v. Koons, which involved incorporation of a photograph into a work of art.

    3) I think it will be pretty difficult to avoid the question of ownership. And it will be impossible to avoid if the AP counterclaims for infringement, which I suspect will happen.

  4. @A&F--yeah, but Lemley couches the transformative argument in some hyperbolic language about "critique" and "artistic freedom" that doesn't really apply--to paraphrase me, he wasn't critiquing Obama here, and artistic freedom doesn't give you the right to gank somebody else's photograph.

    As for transformation: to you Fairey created a new work of art, to me he colored in a picture and wrote on it. I tried that with the Mona Lisa and was not so much hailed as a visionary as kicked out of the Louvre.

  5. We must answer the following riddle: When is a photograph no longer a photograph?

    Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.

    The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.

    There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.

    Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.

    Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.

    The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.

    Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other--all remain perfectly distinct and identical to the original.

    Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction--but photographic nonetheless.

    We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.


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