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paidContent.org - Updated: AP Countersues Over Use Of Obama Image By Artist Shepard Fairey

Staci D. Kramer
paidContent.org
Wednesday, March 11, 2009 6:06 PM

Last month, artist Shepard Fairey filed a preemptive suit against the Associated Press with the help of Stanford's Fair Use Project, asking a federal court for protection from claims of copyright infringement over his use of an AP photo for the basis of what has become an iconic graphic image of President Obama. Today, the AP returned the favor, filing an answer and a countersuit in the U.S. District Court for the Southern District of New York against Fairey, Obey Giant Art, Inc., Obey Giant LLC and Studio Number One, Inc. (The lawsuit can be found here.)

The news co-op claims Fairey used the 2006 photograph taken for the AP by then-AP photographer Mannie Garcia "without permission from the AP, or any form of credit or compensation to the AP or attribution to the photographer." (Garcia, now a freelancer, has said he doesn't want to be part of the dispute.)The countersuit claims Fairey was "fully aware that the [AP photo] was a copyrighted image, misappropriated The AP's rights in that image by developing a series of posters and other merchandise" based on the photo and selling the merchandise without notice, credit or compensation. Release. (Fairey's response has been added after the jump.)

For the AP, it's the latest in a series of high-profile efforts to protect its intellectual property?often at risk to its image when others perceive it as being either heavy handed or somehow impeding others, in this case an artist. But CEO Tom Curley argues in a statement that this lawsuit "is about protecting the content that The Associated Press and its journalists produce every day, with creativity, at great cost, and often at great risk. The journalism that AP and other organizations produce is vital to democracy. To continue to provide it, news organizations must protect their intellectual property rights as vigorously as they have historically fought to protect the First Amendment."

Photo Credit: AP Photo/Mannie Garcia; Shepard Fairey

This particular case is complicated by external factors: the Obama poster was used for the Obama campaign and he promised that the money raised from the sale of prints would go to make more posters for "awareness." Fairey's lawsuit claims he "used the Garcia Photograph as a visual reference. Fairey transformed the literal depiction contained in the Garcia Photograph into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph." (Fairey also believes in protecting some IP, as a commenter points out: Obey Giant Art Inc. sent a cease-and-desist to cafepress.com over the use of "Obey" in merchandise offered by Pittsburgh graphic designer Larkin Werner.)

Licensing its content is one of the ways AP defrays the cost of that reporting, costs that have been much in the news this past year as AP and some of its members battled over rate hikes. The co-op's decision to back down on that in the midst of the economic meltdown makes non-membership revenue even more important. But this is more about protecting what the AP perceives as its intellectual property rights overall since the original intent in its negotiations with Fairey to set up a license would have put the proceeds into the AP Emergency Relief Fund, which makes grants to staffers and their families who are victims of natural disasters and conflicts.

Meanwhile, you can buy Obama hoodies for $60 a pop at the Obey store. The site says the purchases "show your support for hopefully the next President" and that proceeds will go to producing more materials for the Obama campaign. As for Fairey, he was in a Boston court yesterday on graffiti charges. (His take here.)

Update: Just got this statement from Shepard Fairey: "I am disappointed the Associated Press is persisting in its misguided accusations of copyright infringement. I believe that my use of the Mannie Garcia photo as a reference, which I acknowledged off the bat as an AP photograph, falls under "fair use" provisions laid out in the law. I am even more disappointed the AP is now trying to distort the facts surrounding my work. They suggest my purpose in creating the poster was to merchandise it and make money. It wasn't. My entire purpose in creating the poster was to support Obama and help get him elected. Money was never the point. The proceeds that were generated from the poster were used to create more posters and donated to charity. I look forward to disproving the AP's accusations once and for all and upholding the free expression rights at stake here."

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