Came across this report on the New York Times web site:
Artist Sues the A.P. Over Obama ImageComplete article
By RANDY KENNEDY
Published: February 9, 2009
In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama.
The suit was filed in federal court in Manhattan after The Associated Press said it had determined that it owned the image, which Mr. Fairey used for posters and stickers distributed grass-roots style last year during the election campaign. The photo, showing Mr. Obama at the National Press Club in April 2006, was taken for The A.P. by a freelance photographer, Mannie Garcia.
According to the suit, A.P. officials contacted Mr. Fairey’s studio late last month demanding payment for the use of the photo and a portion of any money he makes from it.
Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law professor at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia took.
Ross Todd of the American Lawyer provided us with a copy of the actual complaint, and observes that this will be a rematch between some of the same lawyers who squared off in the Harry Potter case, which I wrote about for e-Commerce Law Report:
The case will be a rematch for Fairey's counsel--former Bingham McCutchen partner Anthony Falzone, who's now executive director of Stanford Law School's Fair Use Project--and AP lawyer Dale Cendali of O'Melveny & Myers. Last spring the two were on opposite sides of a trial involving a Harry Potter fan's attempt to publish a Potter lexicon. (Cendali, representing Potter author J.K. Rowling, successfully blocked publication.)Complete article
This time around Falzone will also have Stanford Law professor Mark Lemley (of the newly formed IP litigation boutique Durie Tangri Lemley Roberts & Kent) with him. O'Melveny partner Claudia Ray is working with Cendali.
Complaint in Fairey v. Associated Press
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