Iconic Obama Poster:

AP Answers Shepard Fairey Lawsuit, Accuses Artist of Infringement
March 11, 2009

Updated 6:20 p.m. ET with a statement from Fairey.

From: http://www.pdnonline.com/pdn/content_display/photo-news/legal-news/e3i71419f4d58d0cd4c5fc9e722ce883515

The Associated Press paints Shepard Fairey as a hypocrite who acted in bad faith in a counterclaim accusing the artist of copyright infringement.

On Wednesday the AP filed its answer to a lawsuit brought last month by Fairey’s attorneys. The AP and Fairey are locked in a dispute over the graphic artist’s famous Barack Obama posters, which feature an illustration based on a 2006 AP photograph by Mannie Garcia.

Fairey says his use of the photograph falls under the Fair Use Doctrine of the copyright law. The AP says Fairey infringed on its copyright and the news organization is entitled to licensing fees and damages.

The AP’s counterclaim accuses Fairey of copyright infringement, violating the Digital Millennium Copyright Act and filing a fraudulent registration with the Copyright Office. The AP seeks the dismissal of Fairey’s lawsuit and unspecified damages, including any profits Fairey and his company, Obey Giant Art, made from the image.

Through a spokesperson, Fairey said Wednesday that he is "disappointed the Associated Press is persisting in its misguided accusations of copyright infringement," and added that he had created the poster to support Obama, not to make money.

The dueling lawsuits are specifically about copyright law, but also concern the nature of newsgathering, political speech, commercialism and art.

“News photography is an art form that requires skill, artistic judgment, dedication, countless hours of preparation and imagination,” the AP counterclaim says.

The AP says Fairey processed the AP photo on his computer, but his creation is “virtually identical” and retains “the heart and essence of the AP’s photo, including but not limited to its patriotic theme.”

The AP approached Fairey in January, after a group of bloggers identified the source image for Fairey’s poster as a photo by Garcia. The negotiation between the two camps' lawyers quickly broke down, and on February 9 Fairey filed a preemptive lawsuit seeking a decision that his design is protected under Fair Use.

The AP’s counterclaim tries to show that the artist has made money off the works of others while acting “hypocritically and aggressively” in protecting his own intellectual property.

The lawsuit shows another Obama poster design that the AP says Fairey created based on a photograph by David Turnley. For that design, according to the AP, Fairey obtained Turnley’s permission and did not use the design on merchandise. The AP says this shows Fairey recognized that “he was required to obtain permission and give appropriate credit” to the copyright holder.

Elsewhere in the countersuit, the AP emphasizes that asking AP for permission would have been “easy and relatively inexpensive.”

Much of Fairey’s work borrows work from other artists, the countersuit says. But it cites a series of letters Fairey sent to fellow artist Baxter Orr last year asking Orr to stop using a design that copied one of Fairey’s well-known “Obey” images. “Fairey is hardly a champion of the First Amendment,” the AP says.

The AP claims that Fairey and Obey Giant Art “have attempted to cloak their actions in the guise of politics and art,” while profiting from their work. The AP believes Fairey and his company have made more than $400,000 in profits from Obama design and related merchandise.

Addressing Fairey’s February lawsuit, the AP says Fairey deliberately cited the wrong AP photo as his source image. The Fairey lawsuit cited a Garcia photo that included both then-Senator Obama and actor George Clooney. That photo is not as close of a match to the poster as a different Garcia photograph from the same event that shows only Obama. The AP says this misidentification “can only be understood as a deliberate attempt to obscure the Obama Photo as the true source material for the Infringing Works and to minimize the nature and extent of Fairey’s unauthorized copying of the Obama Photo.”

Seeking to win goodwill, the AP’s countersuit talks up the importance of the news cooperative and its right to collect licensing revenue, "particularly in these difficult times.” The AP suit also cites Fairey’s arrest record for “graffiti, vandalism and related crimes,” as evidence of his disregard for property rights.

Garcia previously told PDN he’s not sure the Associated Press owns the copyright to his photograph. However, the AP says it registered the photograph with the Copyright Office and Fairey has not contested the AP’s ownership of the photograph.

The AP’s 61-page counterclaim was prepared by attorneys from the firm of Kirkland & Ellis and was filed in the U.S. District Court, Southern District of New York.

Fairey's complete statement Thursday said: "I am disappointed the Associated Press is persisting in its misguided accusations of copyright infringement. I believe that my use of the Mannie Garcia photo as a reference, which I acknowledged off the bat as an AP photograph, falls under “fair use” provisions laid out in the law. I am even more disappointed the AP is now trying to distort the facts surrounding my work. They suggest my purpose in creating the poster was to merchandise it and make money. It wasn't. My entire purpose in creating the poster was to support Obama and help get him elected. Money was never the point. The proceeds that were generated from the poster were used to create more posters and donated to charity. I look forward to disproving the AP's accusations once and for all and upholding the free expression rights at stake here."