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Shepard Fairey Challenges AP Copyright by Jonathan Hunter March 31st 2009 Delicious

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Street Artist Fairey Sues the Associated Press

By all accounts, President Barack Obama’s road to the Oval Office was one replete with firsts. For example, the 2008 presidential campaign marked the first time many had heard of Los Angeles street artist Shepard Fairey. Fairey’s stylized poster of Obama—which bears the Obama campaign watchword, "hope"— became a symbol of Obama’s candidacy among many supporters. Now that image has landed Fairey in a legal battle with the Associated Press, which claims that Fairey’s poster infringes on its copyright to a 2006 photograph. On Feb. 9th of this year, Fairey fired back, seeking a declaratory judgment that his poster of Obama does not infringe on any AP copyrights.

Fairey, known for his "Obey Giant" street art campaign, had previously acknowledged that he used a photo taken by freelance photographer Mannie Garcia as a reference in creating his ubiquitous Obama poster. Garcia took the photo for the AP in 2006 at a National Press Club event in Washington. Fairey found Garcia’s photograph of then-candidate Obama using Google Images. To produce the now iconic image of Obama, Fairey painted over Garcia’s photograph and added Obama’s campaign logo and the word "hope." Because Garcia was only freelancing for the AP when he took the photograph, there is some question as to whether the AP even holds the copyright to the image.

News of Fairey’s suit against the AP comes just days after the artist was arrested in Boston for allegedly tagging city property in 2000. Boston police took Fairey into custody just before he entered a sold-out event launching his new exhibit, "Supply and Demand," at Boston’s Institute of Contemporary Art.

The Associated Press and Fairey were in negotiations to use the proceeds from sales of the artist’s Obama poster to support the AP Emergency Relief Fund, a charity for the families of AP staff that have fallen victim to catastrophes and natural disasters. But Fairey now claims his modification of the photo constitutes fair use, a doctrine that allows for limited use of copyrighted material without the permission of the copyright holder. According to the AP, the parties had agreed not to pursue legal action while negotiations were ongoing, but Fairey’s complaint paints a different picture. Fairey alleges that the AP had threatened to file suit on Feb. 10 notwithstanding any ongoing discussions if the dispute had not yet been resolved by that date.

Copyrights and Fair Use Rights

Codified at 17 U.S.C. § 107, fair use protects uses of copyrighted works for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Courts weigh four factors in deciding whether the use of copyrighted material is falls under the umbrella of fair use:

As Stanford Law School professor Lawrence Lessig discusses in his 2004 book, Free Culture, fair use has increasingly become a refuge for creators and advocates of easing copyright restrictions since the advent of the internet. Unlike traditional media, copying is simply inherent in the design of the internet. Any use of copyrighted material over the internet produces a copy, and is thus presumptively regulated under copyright law. The internet has thus forced the limited protections of fair use to shoulder unprecedented weight. Lessig, who founded Stanford’s Center for Internet and Society, has declined to comment on the dispute between Fairey and the AP. The Center’s Fair Use Project is currently representing Fairey.

Fairey’s Case for Fair Use

Fairey seeks a declaratory judgment that his use of the Garcia photograph does not infringe on the AP’s copyright, and even if it did, his work would be protected under the doctrine of fair use. Indeed, the four-factor fair use test seems to tilt in Fairey’s favor.

Although the Obama poster has brought Fairey great notoriety, Fairey did not use the Garcia photograph for commercial gain. Fairey sold about 4,000 Obama posters by Election Day at $45 each, but he used the proceeds to distribute nearly 300,000 posters for free. Many of the posters resold for thousands of dollars on eBay. More importantly, Fairey so thoroughly transformed the photograph that neither the AP nor Garcia recognized the image until Obama was already in the White House, and even then only after keen-eyed bloggers spotted the poster’s similarity to Garcia’s photograph. The AP can hardly argue that Fairey’s celebrated depiction of Obama—in a style somewhat ironically evocative of autocratic propaganda—did not transform Garcia’s photograph into something new and altogether distinct in nature.

Moreover, while Garcia took his 2006 photo for news purposes, Fairey’s poster is political in nature. In the words of Fairey’s complaint, the Obama poster "transformed the literal depiction contained in the Garcia Photograph into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph." While the apparent purpose of the Garcia photograph was merely to document the 2006 National Press Club event, Fairey’s poster was meant to "inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader, through graphic metaphor." Not only does the political nature of Fairey’s work distinguish it from Garcia’s photograph, it also raises First Amendment concerns.

There is some question as to the amount of the Garcia photograph Fairey referenced while creating the poster. While photographers and bloggers have speculated that Fairey used a tightly cropped photograph of Obama’s face, Fairey says he used a wider shot by Garcia which featured Obama and actor George Clooney seated side by side in front of a set of microphones. If Fairey did in fact reference Garcia’s wider shot of Obama and Clooney, he used only a small portion to produce his poster.

Finally, Fairey’s Obama poster has not diminished the value of Garcia’s photograph to the AP. In fact, as Fairey suggests, the poster has "enhanced the value of the Garcia photograph beyond measure."

Creativity in the Balance

Regardless of the legal merits of Fairey’s claims, Garcia has expressed his respect and support for the artist’s use of his photograph. "If we put all the legal stuff aside and just talk about the photograph and the artwork, I’m very proud of the photograph," said Garcia in a recent interview. "I’m very happy he used my photograph and transformed it into a piece of art that helped elect the first black man to President of the United States."

As Garcia recognizes, Fairey infused his photograph with meanings simply not present in its original form, and elevated the image to a level of influence Garcia scarcely could have anticipated when he captured it at a press event in 2006. The AP, for its part, faced no difficulty in capitalizing on the photograph as a result of Fairey’s work. Through copyright, the Constitution empowers Congress to foster creativity by protecting artists from copyists. But is the AP truly the one in need of protection?