AP And Shepard Fairey Settle Lawsuit Over Obama Image; Fairey Agrees To Give Up Fair Use Rights To AP Photos

from the can-you-do-that? dept

It appears that much of the lawsuit involving copyrights and the iconic Obama poster by Shepard Fairey has come to an end, as Fairey and the Associated Press have settled their lawsuit*. As you hopefully know, Fairey created the poster, using an image that he admitted he found via Google News. For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative. Finally, two years ago (after the election), a photo journalist named Tom Gralish tracked down the original photo. At the time, Garcia seemed thrilled that his photograph had been used. But the whole thing quickly went into bizarre-town, as the AP flipped out and threatened to sue Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used.

Fairey, confident of his position, sued the AP first, leading to a countersuit (and later, a bizarre side argument when Garcia claimed that he owned the photo, not the AP). Of course, the case got a lot more complex (and ridiculous) when Fairey stupidly destroyed evidence and lied about which photo he had used. For someone who had such a strong legit argument, this seriously undermined his case.

Of course, what's never been explained is how the AP was actually "harmed" here. If Fairey hadn't used that photo, he would have found another photo. No one associated the poster image with the AP, and the revelation that it was an AP photo only increased the attention for that AP photo. The whole thing was silly, and perhaps the AP realized that in coming to this settlement. Fairey, of course, had every reason to settle because of his own stupid actions that undermined what otherwise was a solid case. The details of the settlement are a little strange however:

As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative. The two sides also reached a financial settlement; terms weren't disclosed.

The release said neither side surrenders its view of the legal issues surrounding the dispute. The deal also calls for both sides to work together with the "HOPE" image and share rights to make posters and merchandise based on it.

I can understand this, but I wonder if, in that first part, Fairey has effectively given up his fair use rights -- and whether or not that's legal. If Fairey has a perfectly legitimate fair use of an AP image, and doesn't license it, is that still a violation of this agreement?

And while it's unfortunate that we won't get a court to rule directly on the fair use issue, it appears the case is not totally over. In another article detailing the case, it notes that the case will continue against a clothing manufacturer One 3 Two*, who made shirts with the image, and is still fighting and saying that its use did not infringe. However, it also basically says that it licensed the image from Fairey, and if it did anything wrong, basically the blame should land on Fairey.

Lawyers for clothing manufacturer One 3 Two said in court papers that the "total concept and feel" of the AP picture and the Obama image were different. They said that while the AP picture "depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey's street art."

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey's images as it sold apparel and other merchandise using the art.

It would be nice if we actually got a clear ruling that the image did not infringe, but that seems unlikely.

* It's worth pointing out that both articles I've linked to here were written by Larry Neumeister of the Associated Press. While I am sure that Neumeister did his best to be totally objective, in the past, the AP's reporting on this case (which, obviously, is partly about the AP) has not always been objective or fair.

Filed Under: copyright, fair use, hope, obama poster, shepard fairey
Companies: associated press, one 3 two

Chipping Away At Fair Use: Judge Suggests AP Would Win Obama Hope Poster Case

from the fair-use-is-dying dept

While we're still not convinced you can trust the Associated Press's reporting on its own lawsuit with Shepard Fairey, the AP is now reporting that the judge in the case has indicated that the AP will almost certainly win, and that Fairey should give in and settle.

If you don't recall, the lawsuit is over Shepard Fairey's iconic Obama Hope poster. For over a year, no one knew what image it was based on, until a photojournalist pieced it together, and even got the photographer who took the original photograph to admit that he hadn't realized the poster was based on his photograph. That photographer, Mannie Garcia, even talked about how cool it was, and didn't seem upset by the issue at all, saying he hoped he might get a "signed litho" from Fairey. We wondered, at the time, if the AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly demanded money for the use of the photo: Of course, what made this ridiculous was that the AP had absolutely no idea that the poster was based on its own photo. It's difficult to think of a better definition of "transformative use" than that. Oh, and did we mention that the AP regularly used the poster as an image in its reporting? Fair use only goes one way according to the AP. Then, of course, to make matters more ridiculous, Mannie Garcia, the original photographer suddenly "forgot" how happy he was with the poster when it first came out and declared that he, too, wanted money.

It seemed like an open and shut case of fair use. The image was clearly transformative -- such that no one recognized where the original image came from for over a year, including both the original photographer and the company that claimed to hold the rights on it, despite both seeing the poster multiple times (and, in the case of the AP, using images of the poster in its own work). The idea that this poster harmed the market for the original image is laughable. The poster was also used for a non-profit political campaign, and Fairey donated any proceeds from the poster to charity. It practically screams fair use. This is what fair use was created to protect.

Ah, but then we found out that Fairey was an idiot. For no reason whatsoever, he went out and destroyed evidence in the case and lied to the court about what image he had used. It boggles the mind as to why he would do this. He had such a strong case, and in lying and destroying evidence he shot a huge hole through his credibility (and opened himself up to criminal liability).

Who knows what impact that actually had on the judge, but the fact that the judge is already claiming that the AP will clearly win this case in the end, suggests it certainly didn't help. And, because of that, we may end up with a ridiculous ruling on the books that an image that is about as fair use as you could possibly dream up is somehow not fair use.

The really amazing thing in all of this is that the AP itself doesn't seem to realize how much it relies on expansive fair use in its reporting. Even though the judge has more or less handicapped the case significantly in the AP's favor, the AP wants a clear ruling that the image is not fair use:

"Our primary objective is to make it clear to the world that The Associated Press is the copyright owner of that photograph and what he did was not fair use under copyright law," [AP lawyer] Dale Cendali said. "The Associated Press truly has been aggrieved here."

Wait, what?!? "Aggrieved"? How? Seriously. How has the AP lost anything here. This photo was a forgotten photo in the AP's vast archives before photojournalist Tom Gralish figured out where the original came from. Since then, however, that AP photo has received a ton of attention, all because of this silly stunt of a lawsuit. The only way in which the AP might actually be "aggrieved" is if it wins this abomination of copyright law, and stamps out one more clear case of fair use. Because it will almost certainly come back to haunt the AP. As a news publisher, it relies on expansive fair use to do its work. Taking that right away from others is an incredibly misguided move. That a judge has already made clear he's siding with the AP is troubling enough. That the AP still wants to push ahead is even worse.

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