Monday, February 09, 2009

Fairey Sues Associated Press for Declaratory Judgment of Fair Use

Came across this report on the New York Times web site:

Artist Sues the A.P. Over Obama Image

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.
Complete article

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.)

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.
Complete article

Complaint in Fairey v. Associated Press

Commentary & discussion:

American Lawyer

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Anonymous said...

According to the photographer that shot the source image, Mannie Garcia, it's not at all certain that the AP owns the copyright to it:

3) So, you own the copyright to the image?

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

To me, that sounds fairly clear cut: no freelance, staff or other contract whatsoever? Good luck with that one, AP!

As to whether Fairey's use counts as substantial transformative, well that's another matter. I've always been uneasy at the way he uses others' work without any acknowledgement or credit, and think Mannie would have an excellent case should he wish to pursue it (which he apparently doesn't). There's some good discussion on this here:

Macros said...

IMHO, I think Fairey is really pushing to claim it's fair use. It's obvious the painting is from the picture, it has the same pose & expression. His abstract rendition doesn't change the source.

To put it in musical terms (& this is a music-themed blog ;) it's like taking a song and remixing it to be something different. The original is still the source. Johnny Cash's version of Hurt is quite different in expression than the original NIN version, but it's still a NIN song. So NIN would be paid royalties for it.

Even samples, mixed in with other music so they can sometimes be hardly recognised are either covered by royalties or payment.

Why is Garcia's photo any different? He deserves royalties at least.

And to play devil's advocate... how would Fairey feel if someone took his painting and made it into something else? Fair use, right?


Anonymous said...

@Macros: For what it's worth, Fairey has encouraged people to reuse and remix his work since the start.

Davis Freeberg said...

Good for Fairey, the AP is a bully and needs someone to stand up to them. His poster may have been based on someone else's image, but his work is completely different than the original. The mere fact that AP was willing to take the PR hit by going after something this iconic shows how out of touch they are in the digital age. Hopefully, when the AP asks him to settle, he'll continue to push the issue so that we can establish a clear legal precedent for remixing.