Copyright Dispute Over Obama “Hope” Posters Heats Up: Yesterday, The AP Filed Its Answer/Counterclaim to Shepard Fairey’s Dec Relief Action
Fairey et al v. The Associated Press, Case No. 1:09-cv-01123-AKH (S.D.N.Y, filed 02/09/2009)
Shepard Fairey is a contemporary visual artist who created the iconic red, white and blue “Hope” poster that became the symbol of Obama’s campaign and, arguably, a cultural phenomenon (have you Obamicon-ed yourself yet?).
Fairey doesn’t dispute that he used a photograph taken by AP photographer Mannie Garcia at a 2006 National Press Club conference as a “visual reference” for creating the series of “Hope” posters and related merchandise. The AP owns a copyright registration in the photograph (Registration No. VA 1-356-885).
After the AP threatened to sue Fairey for copyright infringement for using the photograph without permission, credit or notice, the artist and his companies filed for declaratory relief. Fairey asserts that his use is protected by the Fair Use Doctrine because: 1) the photograph was used for a “highly transformative purpose;” Fairey “altered the original with new meaning, new expression, and new messages;” 2) the photograph was published “well before” Fairey used it and it is a factual work; 3) Fairey only used a cropped portion of the photograph, and the portion used was reasonable in light of his expressive purpose; and 4) the use not only does not harm the value or market of the photograph or any derivatives, but it has enhanced the photograph’s value “beyond measure.”
In its answer and counterclaim, filed yesterday, the AP asserts that Fairey’s series of posters and merchandise based on the photograph “copy all the distinctive and unequivocally recognizable elements of the [photograph] in their entire detail, retaining the heart and essence of [the photograph], including but not limited to its patriotic theme.” In response to Fairey’s fair use arguments, the counterclaim also alleges that the posters and other merchandise “do not alter any of the distinctive characteristics that make the [photograph] so striking — from the selection of subject matter, to the composition, to the exacting details of the photo.” AP’s counterclaim further points out that licensing of photographs “is an important source of revenue” for news and photo agencies and gives the following as an example of a photograph licensed by the AP for commercial use:
The AP seeks damages and injunctive relief for copyright infringement, contributory infringement and DMCA violation.
To be continued…
Note: Ownership of the copyright in the photograph (and, therefore, the AP’s standing to sue) may become an issue in this case. The AP asserts in its answer that Mannie Garcia was a “full-time salaried staff employee” when he took the 2006 photograph, making the photograph a work-made-for-hire under 17 U.S.C. sec 101. Mr. Garcia, however, claims that he was a freelancer, not an employee.