Arts



February 9, 2009, 8:34 pm

Updated: Shepard Fairey Sues Associated Press Over Obama Poster

Obama photo and posterThe original Associated Press photograph of Barack Obama and Shepard Fairey’s “Hope” poster.(Associated Press.)

Full Story | Artist Sues The A.P. Over Obama Image

Original Post | Shepard Fairey, the visual artist who created the iconic “Hope” poster of Barack Obama, has filed suit against The Associated Press, according to court documents. Last week, The A.P. said in a statement that the poster, based on an A.P. photograph taken by Mannie Garcia in April 2006, requires its permission for use of the image, and that it is seeking credit and compensation for its use in Mr. Fairey’s works. In the suit, filed in United States District Court in New York, lawyers for Mr. Fairey are seeking a declaratory judgment which would rule that Mr. Fairey’s poster does not infringe on The A.P.’s copyrights and is protected by the Fair Use Doctrine. The complaint also seeks an injunction enjoining The A.P. from asserting its copyrights against Mr. Fairey, his company, Obey Giant, and anyone in possession of the poster or works derived from it, as well as a jury trial.

A full report by Randy Kennedy can be found here.


From 1 to 25 of 84 Comments

  1. 1. February 9, 2009 11:56 am Link

    In related news, Andy Warhol’s estate is suing the Campbell Soup Company.

    (AP: give up now)

    — Soothsayer
  2. 2. February 9, 2009 11:56 am Link

    I think Mr. Fairey faces a difficult battle.

    His work is indeed transformative, but almost exactly reproduces the AP image.

    — S
  3. 3. February 9, 2009 12:00 pm Link

    This reminds me of the case several years ago when a man from New York sued photographer Philip-Lorca Dicorcia for publishing a street photograph of the man without his permission. Dicorcia won that case, and likewise, I hope Fairey wins this one.

    — Zach Milligan
  4. 4. February 9, 2009 12:01 pm Link

    Yes, but the image AP took was never intended as an artwork and Mr. Fairey’s poster does not, in my understanding, create any financial loss to AP. I don’t believe AP can win.

    — Antonio
  5. 5. February 9, 2009 12:01 pm Link

    He’s well within his right to use the image as his base as long as it is obviously modified, which it is. Surprised the AP would go this route.

    — M
  6. 6. February 9, 2009 12:02 pm Link

    Doesn’t Obama have that same look on his face pretty frequently? Does AP own that? Or has Obama only used that exact expression once?

    — Grace
  7. 7. February 9, 2009 12:02 pm Link

    1. The new work is rather transformative, changing the medium from photography art, to some sort of photography-plus art, that has an entirely different feel and message (re: hope) to it. This is Fairey’s strongest point, and what wins it for him in my opinion. The original AP photo was in a lot of ways cliche. Fairey’s was contemporary, viral, and in many ways the icon of the entire campaign. It was truly a different piece of art, separate from the AP photo. For me the true test is whether Fairey was riding on the work of the AP to make money, or whether it was Fairey’s artistic vision that made this photo truly great.
    2. The nature of the work is somewhat creative (photography) and thus weighs again Fairey, but at the same time, the original photo has a factual aspect to it, since it is not a doctored or especially artistic photo (in my opinion, since it is really more of a fact shot than a portrait). Further, the photo is already published, which weighs in Fairey’s favor.
    3. The amount of the work taken for use, was its entirety, but also fairly necessary to create the new art. Taking the entire work weighs against Fairey.
    4. The effect on the potential market is determined by onsidering the potential harm of the market for the original work, and whether the new work usurps a potential market hat properly belongs to the owner of the original. Here, the typical example is broadcasting music over
    the telephone (dial up service where you get to listen to songs on the phone) that is owned by radio stations. While the radio stations do not choose to enter the dial up market, they nonetheless should have the right to prohibit or license others to enter that market. Here the AP photo is not merely being resold in a different market. Rather,
    the photo was altered so fundamentally that it created a new market that AP could not have entered unless it had the artistic talent to create something similar.

    Overall, I think Fairey should win this one.

    — A
  8. 8. February 9, 2009 12:03 pm Link

    In my opinion, unless Mr. Fairey is absolutely naive about these issues, he should have sought permission before using material/intellectual property from another agency, etc. I am afraid he is fighting a losing battle here and will either have to compensate AP or risk a major lawsuit coming his way.

    — Luis Berrios
  9. 9. February 9, 2009 12:05 pm Link

    S– on the contrary, “the amount of the work taken” is only one element of the fair use analysis. And while there are elements of the two pictures that are similar, there are many more that are not. One might also reasonably ask whether the similar elements are entitled to copyright protection. (E.g. Obama is wearing a tie, he is looking upward, his ears stick out, etc.) I don’t think AP has a leg to stand on.

    — Kate
  10. 10. February 9, 2009 12:05 pm Link

    If Richard Prince can straight up rip off Marlboro adds, I don’t see that AP has any chance.

    — B
  11. 11. February 9, 2009 12:05 pm Link

    On behalf of all painters working in representational or realist styles - Bravo, Fairey!
    This whole fiasco really bothers me. Here is my reply, posted on another blog:
    There’s a larger context here. Others have mentioned Warhol - but artists have been using photographs as source material since the invention of photography in the mid 19th century. Painters were some of the first to embrace the new technology. A large percentage of all realist art painted in the last century and a half is based, all or part, on photographs. There’s even a stylistic movement named for the practice: Photorealism - yes, most of the Photorealist painters used photos as visual sources, and they weren’t using exclusively their own photos, far from it. Just yesterday, I was having an (unrelated) discussion with a colleague about Degas’ ubiquitous use of photographs for his paintings and other work. It’s absolutely commonplace for painters to use photos in this way. Fairey hardly reinvented the wheel. So why is he suddenly excoriated for a practice that is so commonplace, and, by the way, long predates the copyright laws in question too. There’s something weird about this whole fracas - how have painters in the past been judged (or not) for using photographs as source material for other artworks?

    — kim
  12. 12. February 9, 2009 12:06 pm Link

    Actually Andy Warhol settled with the female photographer who shot the iconic flower image that Andy appropriated for his paintings, silkscreens and posters.

    — Matthew John
  13. 13. February 9, 2009 12:09 pm Link

    I created a poster of Mr Fairey’s face, taken from a copyrighted photo, with the words underneath, “Don’t Steal”.

    I think it will sell tons of posters for me and make me famous.

    — Clem
  14. 14. February 9, 2009 12:13 pm Link

    I think there are doubts about whether the AP even owns the copyright to the photograph. The photograph was taken by a temporary employee who never signed a contract giving AP rights.

    AP has been trying for some time to redefine fair use. They started this fight, and I will be happy to see them lose it.

    — bperk
  15. 15. February 9, 2009 12:15 pm Link

    Go Shepard Fairey! Putting your foot down and making a stand. Shame on the AP for making an issue out of this, it has been over a year since that iconic image of Obama has proliferated to just about every part of the globe and just now they are realizing that it was from one of there images. Here is the Fair Use Act copied from wikipedia

    Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

    the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    he donated it to the Obama campaign who then used it to decorate items given out for donations

    the nature of the copyrighted work;

    the original work is a photo, and the new art work is a digital illustration made by hand

    the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    This one is up to perceptions some might say that he used almost all of the image to create his because the images look so similar, but I argue that he used a small element, i.e. the pose and created the rest by his own invention.

    the effect of the use upon the potential market for or value of the copyrighted work.

    Since the AP usually don’t put there photos on stickers and t-shirts I think that the market for this particular image is pretty safe, I mean one could argue that Mr Fairy’s image helped to get Obama elected and the AP will have better success selling Obama related pictures.

    So if you break down this image by the rules of the fair use act you will see that Mr. Fairy is well with in his legal rights with this image, and by taking on this case he can set the precedent to save future artists from the well connected corporate entities that , in an effort to gain publicity, pick fights with the little guy.

    — Steve W.
  16. 16. February 9, 2009 12:15 pm Link

    Shepard Fairey is a visual artist? no, he’s a vacuous spray painter in search of a blank wall to urinate on!

    — shaman
  17. 17. February 9, 2009 12:17 pm Link

    Doesn’t Mr. Fairey have legal problems of his own?

    http://www.artinfo.com/news/story/30328/fairey-arrested-outside-ica/

    — foodist
  18. 18. February 9, 2009 12:18 pm Link

    I disagree with #2. I think Mr. Fairey’s poster is pretty clearly a derivative work, as defined in the Copyright Act (17 U.S.C. Section 101). When the two images are placed side-by-side, it seems obvious that the poster derives from the photo, but why do the two images have such different impacts? That difference speaks to what Mr. Fairey has added to the original image, thereby creating a unique, if derivative, work that is subject to Copyright protection of its own. To be clear, though, what is protectable by Mr. Fairey is only what he has added, not the original image, which properly belongs to AP.

    — -JF
  19. 19. February 9, 2009 12:20 pm Link

    Boston police arrested Fairey on the way to his art opening Friday for posting his work on public property without permission.
    Apparently the concept of private property rights is also alien to Mr. Fairey and his devotees..

    — Marblehead
  20. 20. February 9, 2009 12:20 pm Link

    The secondary points of emphasis in the poster actually are weighted much more expressively than in the photo. These are clearly creative decisions that would separate the intent and message of the graphic from the facsimile of factual facial expression represented by AP’s photograph.

    AP’s photo was derived from a news event, where neither the pose nor the expression was controlled either through lighting or direction by AP’s photographer. AP’s photographer was compensated on the basis of them providing a documentary image.

    The intent of the artist is to comment upon the subject, not AP or AP’s use or interpretation of their photo. The artist is not seeking to use, exploit or profit from AP’s image as a news event or original news content. Rather the artist is possibly using that image as a point of departure or physical reference for their own interpretation.

    The poster’s choice of graphic colors and weighted lines and simplified planar interpretation are obviously directed toward an editorial and creative interpretation of the subject, regardless of whether the source material was incidental to another situation or statement and is therefore transformative in intent.

    Decision in favor of: Shepard Fairey.

    — jwp-nyc
  21. 21. February 9, 2009 12:21 pm Link

    Andy Warhol was sued when he used a flower photo out of a a seed catalog for an edition of silkscreen prints. The photographer sued and won. I think AP has a strong case. As a photographer, I’d be suing the guy.

    — Brian Corll
  22. 22. February 9, 2009 12:25 pm Link

    This is not copyright infringement. Artists use photos from the web as reference images all the time. It’s one thing to just take a photo and reuse it. It’s another to use a photo as reference to make a completely different image, which has been done in this case. It is vital that this process is left untouched to not stifle creative expression and freedom.

    — GG
  23. 23. February 9, 2009 12:26 pm Link

    Once again, I’m afriad to say, it seems like the favorite story for the Main Stream Media is the Main Stream Media. What a wonderful way for AP to sully a beautiful work of art, a political icon and an artist who, frankly, just got lucky that it was his image that defined a campaign.

    Mr. Obama doesn’t seem to be going around suing the AP for using his photograph to sell millions of stories. There’s enough of this pie to go around, the AP got theirs.

    — Jason
  24. 24. February 9, 2009 12:26 pm Link

    Here’s another recent example of a long-established painter using photographs:
    http://latimesblogs.latimes.com/culturemonster/2009/02/peter-max.html
    Peter Max paints Obama 44 ways
    “Shepard Fairey doesn’t have a monopoly on the turn-a-Barack-Obama-photo-into-art market. Longtime pop artist Peter Max has done Obama times 44, in honor of the 44th president. This large installation — 15 feet wide and 6 feet tall — incorporates two Obama photos painted 44 ways by Max in his familiar brightly colored, neo-impressionistic style.”
    Also included in the article is an image of a Max painting of Bill Clinton - also based on a photograph. Why is Fairey singled out for scorn?
    Really, this Fairey case feels like an attack on all artists who work in realism - hey, kind of like the hostility to including funding for the arts in the stimulus bill!

    — kim
  25. 25. February 9, 2009 12:27 pm Link

    #21, what basis would you sue on? Does the AP own Barack Obama’s image?

    — Brian

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