Wednesday, February 23, 2011

Court: Merchandising of Shepard Fairey 'Obama Hope' image not fair use; factual issues remain on substantial similarity

The court in the case involving Shepard Fairey's use of an AP photograph in his famous "Obama Hope" poster has ruled that a company that manufactured and distributed clothing bearing the Obama Hope image under license from one of Fairey's corporate entities did not engage in fair use. The court, however, held that there remains a factual dispute whether the images used by One 3 Two, Inc. on its merchandise were "substantially similar" to the AP photo. Judge Alvin Hellerstein did not explain his reasoning in his brief summary order. Trial on the remaining issues is set for March 21. Here is One 3 Two's opening brief, and the AP's.
Shepard Fairey Summary Judgment Order

The claims between the AP and Fairey and his corporate entities have been dismissed pursuant to settlement.