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."

Banks lead the way with women in top jobs

'We're up from where we started, but we can do better'

By MARY TERESA BITTI, Financial PostMarch 18, 2009

From: http://www.montrealgazette.com/Business/Banks+lead+with+women+jobs/1401120/story.html

Hillary Clinton, on losing the Democratic nomination to Barack Obama, famously said, "There are now 18 million cracks in the glass ceiling," bringing home the reality there is still a glass ceiling for NorthAmerican women trying to climb the corporate ladder, albeit in some sectors, particularly finance, it is easier to do so.

That reality was all too readily confirmed with the release last month of the 2008 Catalyst Census of Women Corporate Officers and Top Earners of the FP 500. While the number of women corporate officers in Canada rose to 16.9%, one-third of FP 500 companies had no female executives.

Another recent study, the Rosenzweig Report onWomen at the Top Levels of Corporate Canada, discovered there are 36 women in executive- suites across Canada, including five chief executive officers. On a percentage basis, that's about 7.2%, which means men still hold 92.8% of the highest paid positions in Canada's largest public companies. More than two-thirds (69%) of Canada's biggest public companies do not have women executives at the top paid ranks.

Still, those 36 women represent a 24% jump from last year. "On the one hand we were happy to see the numbers have gone up steadily," says Jay Rosenzweig,managing partner of senior executive search firm Rosenzweig & Company. "This is our fourth study and we are up 60% from where we started; that's the good news. The bad news is the number is far too low. We believe we can do better." Of course, some areas are doing better. While women were represented in top levels in all industries, finance, particularly the banks are leading the charge. Of the five largest Canadian banks, four made the Rosenzweig list: Royal Bank of Canada, Toronto Dominion Bank, Canadian Imperial Bank of Commerce and Bank of Montreal.

"To their credit, [banks] capitalized on an opportunity to improve on their business," Mr. Rosenzweig says.

"They realized the more you invest in diversity the greater your return will be. Diversity spurs creativity in thinking, furthers debate and out of debate comes better results." The American Management Association released a study demonstrating that diversity in ethnicity, age and gender among senior management in 1,000 U.S. companies was linked to better corporate performance. A report from Rutgers University and Iowa State University looked at 112 large U.S. companies for five years in the 1990s and found diversity on corporate boards was linked with better organizational performance.

And a Catalyst survey of Fortune 500 companies found that return on equity was 35% higher for those companies with the greatest gender diversity in the top ranks, compared with those with the fewest female executives.

"The banks realize there is a business case being made to getting women into those top positions," says Sue Calhoun, president of the Canadian Federation of Business and Professional Women's Clubs, adding, "the more companies start to realize this, the more they will start to be proactive in putting women into those positions." According to the Prime Minister's Task Force on Women Entrepreneurs, for the past 15 years, women in Canada have started businesses at twice the rate of men. "If you think about it, women starting their own businesses need the banks. I would suspect that that is havingamajor impact on their banks, in order to better serve them," Ms. Calhoun says. "At the same time, a great percentage of the banks' workforce is women. Look around. They are seemingly able to attract all these women, now they need to help them work their way up. It is almost the perfect microcosm for shaping a new day for women in the executive suite." Yasmin Meralli, vice-president diversity and workplace equity at BMO Financial Group in Toronto, has experienced this first hand. Born in Tanzania, she has had a diverse career that began with a degree in microbology, and included working at a railway and the largest electricity company in the England, and articling with a Chartered Accountancy firm.

"In banking, there has been a deliberate focus to help women come up the ranks," Ms. Meralli says. "There was also an early recognition of the linkage between diversity and performance." In fact, BMO had its first woman board member in 1967 -- not too long before that, women who worked in banks were expected to leave their jobs when they got married.

In the 1980s, BMO undertook a taskforce to bust some myths about women in the workforce and ended up proving women perform as well if not better than men and had longer tenure with the bank than men. These discoveries led to policies that created a workplace where men and women could do their best work.

Those policies still in place today include flexible work arrangements; formal and informal mentoring and networking opportunities; and looking for ways to give future leaders that all-important line experience that leads to the C-suite.

"This is driven from the top," Ms. Meralli says. "Embracing diversity is built into the way we work as a company. Our performance tracker includes diversity metrics." Her advice to other industries: step up.

"This will not just happen. If you as a company decide this is important then you have to make it happen." That goes for women, too. "We need to make sure we are vocalizing what we want, thinking through what we want and being aggressive about it.

There is a real opportunity for women to work toward change and in getting more organizations working toward change."