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It's getting uglier: Shepard Fairey one-ups Associated Press in dispute over Obama image

April 16, 2009 |  6:49 pm

Hope

Artist Shepard Fairey cut his teeth on the mean streets of Los Angeles, so he's definitely not going to let some pipsqueak organization called the Associated Press push him around.

This week, Fairey responded to a lawsuit filed by the AP in which the news organization claims that the artist broke copyright laws when he used its photograph of Barack Obama for his "Hope" poster.

Fairey's lawyers said in papers filed at a New York court Wednesday that the artist's use of the photograph is protected by the First Amendment as well as by fair-use laws.

But the real attention-grabber was Fairey's assertion that the AP itself violated copyright laws when it used a photo of the artist's "Hope" poster without getting permission. In other words, he's arguing that the AP can't reproduce an image by Fairey that the artist himself appropriated from the AP.

Did we just fall into a rabbit hole? Here's what Fairey's lawyers wrote:

"On January 7, 2009 The AP distributed a story entitled 'Iconic Obama portrait headed to Smithsonian museum' by Brett Zongker. The AP's article included a photograph attributed to The AP, which depicted Fairey's Obama Hope Stencil Collage that now hangs in the National Portrait Gallery of the Smithsonian Institution.... The AP did not obtain a license to use Fairey's work in this photograph. As shown below, the photograph attributed to The AP consists of nothing more than a literal reproduction of Fairey's work."

They also accuse the AP of similarly infringing the copyright on works by Jeff Koons, Banksy Keith Haring and George Segal.

We at Culture Monster know that L.A. art-hipsters can be a pretty sarcastic and smart-alecky group of people. (Call it a permanent state of ironic detachment.) Whether Fairey is merely thumbing his nose at the venerated news institution or if these new claims have real merit -- or both! -- remains to be seen.

However you look at it, this saga is long from over. Check back often, folks.

-- David Ng

Photo: Mannie Garcia/ Associated Press; artwork by Shepard Fairey


 
Comments () | Archives (9)

Oooh! A good art fight! Hasn't AP heard about Andy Warhol, Sherrie Levine, Robbie Conal? To name a few.

C.CastaƱo

Is Fairey a complete moron? Is he saying that he does not want the news to report on his art and its influence? Is he going to make the same charges against hundreds of other news sources and bloggers?

This should not be a game to Fairey or his lawyers. The media has every right to report on news. It goes without saying! Talk about grasping at straw. Did Fairey have permission to use the visual examples listed on Huffington Post? Does he really want to play in that ball park. What a moron.

To Carolyn Castano, I think Fairey is making a good point about "fair use" here, by saying that things found in public and semi-public space should be open to appropriation. But if the AP contents that a photo found online cannot be used to make a collage or print, who gives AP the right to reproduce that very art without the permission of its creator. That's not moronic. It merely questions the logic of copyright under our current market system.

@castano You're not getting the point. Mr. Fairey is simply using the AP's own argument against them. He is not trying to prevent newspapers from reporting on his artworks, he is showing an example of the stranglehold that restrictive copyright laws have on free expression.

I read Fairey's counterclaim, Tip. He isn't denying the AP the right to use photos for journalistic purposes, he called them on the copyright infringements of selling photo reproductions of their artwork, which in truth, he's correct. They make a great profit, too. And, currently they've been using his work to advertise their website for these photo sales. He wasn't actually telling them to stop, merely pointing out the hypocrisy of the AP cherry picking the copyright laws. Corporations should not have more rights than the little guy.

it's time to take down fairey once and for all for spewing trash on the street and affecting so many fools in the process

Not only is Fairey obviously enjoying the irony here, I actually think his copyright claim is more defensible than the AP's. If you look at some of the things that make a use "fair," I think his poster (derived from an AP photograph) is more transformative a use than an AP photograph *of* the poster. And certainly if the AP made more money selling copies of said photograph than Fairey made selling his poster, that'd be another strike against the AP. You're right that the claim highlights the absurdity of copyright law, but I also actually think it may be a legit point legally.

fairey's use of the AP foto is probably fair use, and his counter-suit sounds like a desperate prank, but his real hypocrisy is suing another artist for using the word "obey" in a completely different context. that is super lame, a total betrayal of his so-called "street cred" and claims to the "fair use" defense.

http://www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/fairey_obey_my_lawyers_1.html


"In other words, he's arguing that the AP can't reproduce an image by Fairey that the artist himself appropriated from the AP."

No. Your summary is dead wrong. Read the legal brief, because you seem to think he is arguing the opposite of what he is. He is saying that his transformative use of the AP-licensed photo is as fair as the AP's unlicensed photography of works by many artists. Fairey understands that spreading information is the natural function of culture, and claims that the AP can't pick and choose when to respect strict copyrights. Either this kind of use is fair (he thinks it is), or it is not, but under the equity doctrine of "unclean hands", the AP can't bring suit about something they are doing themselves.

I made a long post about this issue today at my new blog: http://ottonomy.net/blog/?p=6


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