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

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  1. identicon
    blair, 24 May 2015 @ 12:56am

    Not going to get a clear answer

    There is no absolute answer here.

    The photo was created by someone whose rights belong to the AP, but they did not create the distinctive color separation or all of the shading and other visual elements of the painting.

    The painting was created by Fairey, but he did not create the basic pose and facial expression of the person in the painting.

    So the image doesn't belong 100% to either of them. A fair division of the property would lie somewhere in between 100% for AP and 100% for Fairey. But where? 10% for AP and 90 for Fairey? The reverse? 60-40? 50-50?

    That's not something that can be calculated without coming up with a numerical assignment of the value of every facet of the image, and that's a fractal problem. Whatever system you can devise, I can find deeper variables to tweak. And we can argue for millennia as to the scaling for each variable.

    The parties negotiated a sharing agreement, and that's all we'll ever get. It's the best solution, since it eliminates disagreement and the expense of being disagreeable. And maybe that's the absolute answer.

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