Intellectual Property Law

The Associated Press brought a copyright lawsuit Wednesday, alleging that Los Angeles street artist Shepard Fairey used "computerized paint by the numbers" and "copy-and-paste style" to create the highly recognized "Hope" image of Barack Obama.

The nation's oldest and largest operating news-gathering organization sought unspecific damages from Fairey, who the wire service accuses of misappropriating a 2006 AP photo of Obama when he was a senator from Illinois. Last month, Fairey filed a preemptive lawsuit seeking to have a court rule that his computerized image was a fair use of the photo snapped at National Press Club on April 27, 2006.

"Simply put, the fair use doctrine cannot be contorted to permit Fairey to wholly replicate a photographer's prescient photograph and exploit it for his own commercial benefit,"  (.pdf) the AP wrote in its New York federal counter suit. The AP claims Fairey has generated $400,000 in sales of the image, which has adorned websites, posters, stickers, shirts and buttons.

And the AP said Fairey vigorously defends his copyrights, even threatening to sue Texas artist Baxter Orr who reconfigured a Fairey drawing by adding a surgeon's mask.

The news agency added "Fairey essentially has engaged in a form of computerized paint by the numbers with The AP's copyrighted image ? taking the work in its entirety. The amount and substantiality of plaintiffs' use is unmistakable ? it is a wholesale copying of The AP photo."

Fairey has acknowledged his popular "Hope" image was based on the AP picture taken by Mannie Garcia. But Fairey said in his suit that his rendition transformed the photo into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."

The AP disagreed, writing that Fairey's depiction retains "the heart and essence of The AP's photo, including but not limited to its patriotic theme."

In a statement, Fairey said:

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.

See Also:

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