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Artist Sues The A.P. Over Obama
Image
Published:
February 9, 2009
In a pre-emptive strike, the street artist Shepard Fairey filed a
lawsuit on Monday against The Associated Press, asking a federal judge to
declare that he is protected from copyright infringement claims in his use of a
news photograph as the basis for a now ubiquitous campaign poster image of President Obama.
The suit was filed in federal court in
According to the suit, A.P. officials contacted Mr. Fairey’s studio
late last month demanding payment for the use of the photo and a portion of any
money he makes from it.
Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive
director of the Fair Use Project and a law lecturer at Stanford University,
contend in the suit that Mr. Fairey used the photograph only as a reference and
transformed it into a “stunning, abstracted and idealized visual image that
created powerful new meaning and conveys a radically different message” from
that of the shot Mr. Garcia took.
The suit asks the judge to declare that Mr. Fairey’s work is protected
under fair-use exceptions to copyright law, which allow limited use of
copyrighted materials for purposes like criticism or comment.
“Fairey did not do anything wrong,” said Julie A. Ahrens, associate
director of the Fair Use Project and another of Mr. Fairey’s lawyers, in a
statement on Monday. “He should not have to put up with misguided threats from
The A.P.” Paul Colford, a spokesman for The A.P., said on Monday that the
agency was “disappointed by the surprise filing by Shepard Fairey and his
company and by Mr. Fairey’s failure to recognize the rights of photographers in
their works.”
He added: “A.P. was in the middle of settlement discussions with Mr.
Fairey’s attorney last week in order to resolve this amicably and made it clear
that a settlement would benefit the A.P. Emergency Relief Fund, a charitable
fund that supports A.P. journalists around the world who suffer personal loss
from natural disasters and conflicts.”
Mr. Fairey, 38, has become one of the most visible practitioners of a
guerrilla-style art that has grown out of the graffiti scene but has expanded
beyond paint to include a wide variety of techniques and materials, producing
works usually displayed illegally on buildings and signs.
Mr. Fairey decided to create the image on his own before contacting
the Obama campaign, which welcomed it but never officially adopted it because
of copyright concerns. Before the election, Mr. Fairey was best known for his
fake-advertising stickers and posters, pasted in cities across the country,
showing an ominous, abstracted image of the wrestler Andre the Giant along with
the word “Obey.”
Mr. Fairey is the focus of a retrospective that opened last week at
the Institute of
Contemporary Art in
After Mr. Obama’s victory, speculation increased about which picture
had served as the basis for Mr. Fairey’s posters. In interviews the artist said
that it was one he had found on the Internet. Bloggers, including the Manhattan
gallery owner James Danziger, pursued several leads until, according to the
lawsuit, Tom Gralish, a Pulitzer Prize-winning
photographer for The Philadelphia Inquirer, helped track down a photo by Mr.
Garcia that showed Mr. Obama sitting beside the actor George Clooney at a 2006 event about Darfur at the National
Press Club.
Further complicating the dispute, Mr. Garcia contends that he, not The
Associated Press, owns the copyright for the photo, according to his contract
with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia
said he was unsure how he would proceed now that the matter had landed in
court. But he said he was very happy when he found out that his photo was the
source of the poster image and that he still is.
“I don’t condone people taking things, just because they can, off the
Internet,” Mr. Garcia said. “But in this case I think it’s a very unique
situation.”
He added, “If you put all the legal stuff away, I’m so proud of the photograph
and that Fairey did what he did artistically with it, and the effect it’s had.”