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Shepard Fairey Points Out That The AP Used His Image Without A License

from the getting-down-and-dirty dept

Thu, Apr 16th 2009 11:38am — Mike Masnick

In the latest skirmish between the Associated Press and Shepard Fairey over copyright concerning his iconic poster of Barack Obama, Fairey has filed new counterclaims against the AP, including that the AP used the photo of Fairey's poster without getting a license. He also lists out a number of other images of artwork that the AP did not get a license to use, but which it uses within photos, and then states:

The doctrine of unclean hands and basic principles of equity prohibit The AP from contending that Counterclaim Defendants' Obama Works infringe The AP's copyrights when The AP itself exploits the copyrighted work of Fairey and other artists without permission and in a manner that is far less transformative than the Obama Works, as illustrated but not limited to, the photographs listed above.

It seems this battle is getting nasty. Of course, while making these claims may feel good, it's hard to believe that they'll be all that compelling. The AP will clearly claim that its photos of these pieces of artwork were fair use, as part of news commentary. But, that's probably part of the point being raised by Fairey's legal team. It's unlikely to believe that the AP really abused Fairey's copyright or the copyrights of these other artists, but if it can get the AP defending its acts on fair use principles, then they can easily use the AP's words against it, in explaining why Fairey's image is also covered by fair use.

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Filed Under: copyright, fair use, shepard fairey
Companies: associated press

19 Comments

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ChurchHatesTucker (profile), 16 Apr 2009 @ 11:51am

Oh, it gets better
The AP emailed a statement to bngbng, outlining that they think it's interesting that he's claiming Fair Use while citing them for acts that they consider Fair Use. And (somehow) that undermines his claims to Fair Use.
The rabbit hole is very deep indeed.
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Paul Colford, 16 Apr 2009 @ 12:03pm

Fairey and AP
Statement from The Associated Press:

The Associated Press is still in the process of reviewing Shepard Fairey's response to its Counterclaims, but it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP’s copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities.

Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used.

We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP’s Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works.
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RD, 16 Apr 2009 @ 12:20pm

Hahahaa
The vultures are eating each other, this is great! Oh, the irony! He took an AP photo to begin with, modified it into a new thing, then the AP used THAT image and both are suing each other for the same breach! BRILLIANT!

You have to wonder at the sheer greed and stupidity of humanity. Only the lawyers will make out in this, everyone else loses. Idiots.
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- Anonymous Coward, 16 Apr 2009 @ 7:44pm
  
  Re: Hahahaa
  Except that he didn't 'modify' it. That suggests that he took the photo and used software to transform the photo, itself, into the poster. That just isn't the case. If you follow backwards, you'll find links in the previous article on this story where he shows just how he made that poster. Still, this IS a transformative work, and surely covered by fair use.
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Weird Harolds #2 Fan, 16 Apr 2009 @ 12:21pm

Stealing!
There is no fair use! Consumers need to learn to bend over and take it from their corporate masters! (been bad? no lube for you!)
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- Anonymous Coward, 16 Apr 2009 @ 1:39pm
  
  Re: Stealing!
  What do you mean? Harold Hill is working at the local sex shop handing out lube. You could go get some if you want, but who knows where it's been.
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Ima Fish, 16 Apr 2009 @ 12:25pm

Shepard Fairey's attorney's argument should not have been: "the AP used our pictures, thus they have unclean hands." The unclean hands doctrine is used against equitable claims. Copyright law is statutory. There simply is no unclean hands argument here.

The attorney could and should have argued: "Much in the same way that the AP's use was fair use, so was Shepard Fairey's use."
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- ChurchHatesTucker (profile), 16 Apr 2009 @ 12:30pm
  
  Re:
  Copyright law is statutory.
  Well, a little from column A, and a little from column B.
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  - Ima Fish, 16 Apr 2009 @ 1:41pm
    
    Re: Re:
    "Well, a little from column A, and a little from column B."
    
    I don't really know what you're talking about. But you cannot use the unclean hands defense/doctrine against statutory claims, only against equitable claims. And copyright is certainly statutory.
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C.T., 16 Apr 2009 @ 12:34pm

Not really
"but if it can get the AP defending its acts on fair use principles, then they can easily use the AP's words against it, in explaining why Fairey's image is also covered by fair use."

The counterclaim is a tactical move that will have little bearing, if any, on the outcome of this case. Fairey's fair use defense is going to be extremely interesting to watch develop. However, the AP's fair use claim will not be relevant to Fairey's... the reasoning underlying the arguments will not be similar, nor will they rely on the same authorities (precedents).
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Killer_Tofu (profile), 16 Apr 2009 @ 1:09pm

Go Fairey
I don't really care how much true impact it has. I still want Fairey to win. Fight the good fight man! Don't give in to the corporate copyright pig-dogs.
The internet and technology are here AP. Adapt or die bitches.
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William Coxe, 16 Apr 2009 @ 1:12pm

Kindle
That did it. The mere fact that Amazon can brick a Kindle killed ANY desire I had to own one. They are dead as far as I am concerned. Ashamed, really, it looked so promising.
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- William Coxe, 16 Apr 2009 @ 1:16pm
  
  Re: Kindle
  Oops, sorry, somehow this comment ended up on the wrong article.
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af, 16 Apr 2009 @ 2:41pm

Statement by Shepard Fairey's lawyer in response to AP statement
AP Issues Statement About Fairey's Answer, Misses Point Entirely by Anthony Falzone, posted on April 16, 2009 - 9:12am In the answer to The AP's counterclaims we filed yesterday, we included a dozen examples of AP photographs The AP sells, which consist almost entirely of the copyrighted artwork of Fairey and other artists. Today, The AP issued a statement accusing Fairey of "making attacks" on The AP and "deliberately omitt[ing]" the "newsgathering context in which the various images were generated and in which they are used." The funny part about this is Fairey doesn't allege The AP's photos are illegal or infringing, much less "attack" The AP. The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way. Fairey's allegations don't say the AP shouldn't be allowed to do what it does. These allegations -- and the AP's response -- just demonstrate The AP demands wide leeway for its use of other artists' work, but insists that others, like Fairey, are entitled to much less leeway. As for "newsgathering," The AP misses the point again. While the photographs may have originally been taken for the purpose of newsgathering, they are presently for sale on The AP's image licensing database as a commercial product for "professional photo buyers." So let's get this straight: We're not alleging The AP's photographs infringe anyone's rights, or demanding The AP stop doing the excellent work it does. We simply contend The AP should have to play by a consistent set of rules. We contend fair use should apply broadly -- for everyone. If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too.
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Bob, 16 Apr 2009 @ 2:41pm

Fair Use Only Goes So Far
Sure, if AP used the Photo's in a news story and that was it, then I agree it's Fair Use. If AP though uses it on say its' website as a header photo/image for decorative purposes, then no, it's not Fair Use.

While it is getting nasty, let's be perfectly honest, AP doesn't have a great track record themselves with Photo Journalist and Artists. AP started this fight, now it looks like someone is willing to pull the cover off some of the dirty laundry AP has lying around....I love a good fight!
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sloppyright, 16 Apr 2009 @ 6:13pm

I dont get it - AP has nothing
As I understand it, Fairey created the item in dispute with his own hands. No copy, no tracing, all by hand. Is this not correct? If this is correct, how is it a copyright violation when there is no copy. The picture and the poster are not identical, the pose is even slightly different. This is silly, AP need to get real - what a bunch of whiners.
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PinballLes, 16 Apr 2009 @ 8:47pm

This case is the reason why the general population considers lawyers to a pack of idiots and big business to be a pack greedy arseholes.

There is a fundamental problem with the law when it's so complicated that no one really knows who is in the right and who is in the wrong, because it all comes down to interpretation. It's stupid.

As far as I'm aware this Shepard Fairey dude created the poster with no intention of creating money from it, rather created it as an creative endeavor, so where's the problem. I don't think he copied the photo, at best he probably used a low resolution version of the photo as inspiration for his poster.
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PBW, 17 Apr 2009 @ 9:02am

wants his cake and eat it too.
Do you need permission in a news story? Not sure. But at least AP gave credit that the poster was his, more so than fairey gave credit to the photographer, "inspiratio"n or not. Another expample of fairey wanting his cake and eating it too. read further to see how fairey picks on the little guy:
http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932
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Gene Cavanaugh, 17 Apr 2009 @ 5:36pm

Fairey and AP
You are missing the point: the Doctrine of Unclean Hands says that if you are contributing to the problem, in this case, doing the same thing yourself, you can be estopped from suing someone else for the same thing.
With the Doctrine, fair use is not an issue; the only issue is whether you are blameless yourself for the act complained of - it is an estoppel issue, not a rebuttal issue.
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