Obama “Hope” artist claims he has fair use rights to image, sues AP


The artist who drew the now famous Barack Obama posters with the word “HOPE” is suing the Associated Press ahead of an expected lawsuit from them. Street artist Shepard Fairey claims his iconic images are an exception to traditional copyright rules because he only used the photograph as a reference. And to further complicate the issue, the photographer who took the picture, Mannie Garcia, is a freelancer, and according to his deal with the Associated Press he still owns the rights to the image. Yet the AP was threatening Fairey with legal action.

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.”

[From the New York Times]

The image really is stunning, and to say it’s now iconic is an understatement. There are websites that let you upload your own picture and then transform it in the same style as the Obama photo. You can even pick your own word. The posters made a real impact with people, even though the Obama campaign never officially endorsed them (due to worries about the copyright).

It seems the whole thing may end up being a moot point, as it sounds like original photographer/copyright holder Mannie Garcia was very impressed with Fairey’s work.

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.”

[From the New York Times]

I think the AP should just let this one go. I doubt Fairey got rich off the image, and ownership in this case is dubious at best. And it’s not like the guy was printing up their photo, smacking it on t-shirts and selling it. He based his own drawing off it. Yes it’s something a court could weed though, but I think it’s in better taste to just let it go.

Header image is the iconic Obama “Hope” image compared to the AP Photo. Thanks to The NY Times for this comparison image.

You can follow any responses to this entry through the RSS 2.0 feed.

22 Responses to “Obama “Hope” artist claims he has fair use rights to image, sues AP”

Comments are Closed

We close comments on older posts to fight comment spam.

  1. sissoucat says:

    I can’t believe AP is suing Shepard Fairey… He made his version of an existing photograph, he did not use the original.

    If AP wins, will we see the photographer of ‘Raising the flag on Iwo Jima’ suing the photographer of ‘Raising the flag at Ground Zero’ ?

  2. Mairead says:

    For what it’s worth the image isn’t “abstracted” it’s expressionistic.

    Didn’t the photographer (whose name slips my mind) who took that iconic photo of Che Guevara have to put up with similar for years?

    Difficult to know how this will pan out.

  3. Aspen says:

    You know…I just HAVE to side with the artist on this one.

    What he did is now famous…on a global scale. The AP is unpardonable. I’m sure they’d be the first ones to jump on file sharing thievery, but they have no problem yanking this intellectual property (which is how I simply MUST view things like this).

    I know there are legalities involved…and if the idiot signed something over or contracted himself poorly with regard to this image, then this will be a lesson learned. If this is just an instance of a corporation taking liberties because they have no respect for individuals…then I hope the courts give him a crapton of cash and sole rights to the painting’s image.

  4. Bodhi says:

    YEAH Shepard!! He is from my hometown (Charleston, SC) & he is a hero to the art community here. He started his whole Andre the Giant thing here when was back in high school.

    Anyhoo, I think its a moot point, too. What I find interesting is the HE filed suit, not the AP.

  5. Kara says:

    Wow. I’m shocked at the people who have no freaking clue about the LAW. Copyright law says that the owner of the copyright (in this case the photographer) has the right to control the reproduction of his images – INCLUDING DERIVATIVE WORKS. Whether it’s iconic or not has f-all to do with it. Whether the guy made money off of it or not is also irrelevant.

    I’ll tell you what, Jay. Why don’t I take all of your posts from this site and bind them in a book with some of my photographs and become famous off of them by distributing thousands of copies. It’s not like I’m making any money off of your writing, so it’s ok, right?

    The ONLY person who has a right to say if it’s ok is the photographer who owns the copyright. The AP has no right to file suit, and quite frankly the artist who used the photograph doesn’t have a legal leg to stand on.

  6. casey.in.co says:

    bodhi: i totally remember how huge ATG was. i actually found a few old stickers from back in the day when i was at CofC! no my grown-up volvo is a member of the ATG posse.

  7. javelin says:

    As a photographer and artist, I must say– although I would hate for anyone to use my images without permission, I believe it is far more important to support the creation of new artistic material than to bully artists, especially since we do not make much money off our tireless efforts.

  8. CB Rawks says:

    I love that image. It’s just beautiful.

  9. JR says:

    Why is it that we are treating the artist as the victim in this case? He took something that didn’t belong to him and created a work from it without even attempting to ask the original photographer.

    “What he did is now famous…on a global scale. The AP is unpardonable.”

    So because its famous we should just throw away AP’s rights? BS, huge BS

  10. Bodhi says:

    Awesome Casey!!

    Kara~ Interestingly (at least to me) JayBird left out the quote 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.

    which is smack in the middle of those presented in this post.

    There are complicated fair-use issues involved in this & I don’t pretend to understand them all or explain them.

  11. Bodhi says:

    Shep was famous on a global scale LONG before this poster, JR

  12. brista says:

    It’s a picture…of an extremely famous man…that the artist used as reference. Might as well go over everyone who has ever seen a photo or video of a celeb and then drawn a caricature. Or of a sunrise, famous landscape, etc. I bet someone has painted the Eiffel Tower after looking at a photo of it.

    And…personally, I always feel like paparazzi photos don’t deserve a copyright. Sorry. Take a picture of someone else without their permission then stick your name on it and charge others to use it? Nah. Not saying the Obama photo is a pap photo…but it looks like a screencap, something I could grab while watching a debate, not so much something that required artistic effort and merited a copyright.

    Yeah, yeah, no legal leg, whatever. Good thing I have no artistic talent whatsoever so will probably never have to test my theory. And yeah, yeah, photographers are artists, too. They are, I’m sure. I’ve seen some really interesting Obama-related candids that I guess you’d have to have an eye to catch. There’s one of him and Michelle on a train right before the inauguration that was really sweet.

  13. Suzieee says:

    Also, this guy has a museum retrospective going on right now in Boston at the ICA – a great show that has this image in it. The Boston police just tried arresting for old tag charges before his opening. When you get big everyone wants something to do you with you….

  14. pipsqueak says:

    As 30 year professional artist and photographer I do have some issues with the artist. I have had both my artwork and my photo’s jacked off the internet and modified slightly ( sometimes not at all) and sold as others work, on ebay and other sites. In one case I was alerted by a customer who saw cards and posters of my work under someone elses name. It was a huge production and costly to shut them down.

    I also frequently reference others photo’s for ideas but I have NEVER done so without asking their express permission and gotten it in writing. The artist violated copyright laws. Period.

  15. Aspen says:

    The photographer is not the one filing suit. The Associated Press is. That was my understanding.

    If he didn’t have permission to paint it from the photo…then I’m not victimizing him. Perhaps I misunderstood the article.

    My understanding from the post was that the AP is suing the painter to use the painting. The photographer and the original photograph were not in legal question from what I read. Honestly, I don’t care that much. I simply tend to feel bad when individual artists are taken advantage of by large companies with large legal teams who want to steal their work and use it to make money.

    No need for being catty about it.

  16. Dani says:

    I would say that if the original photographer (who owns his own rights to the photo) was pissed off about it, sure do the legal stuff. But since he doesn’t really seem to care, why is anyone bothering with it?

  17. Bodhi says:

    Aspen~ Fairey filed the suit, not the AP or the photographer

  18. breederina says:

    Bodhi, Fairey filed in response to a suit filed by AP that was all over the news this week.
    BTW, love this guys work and as far as I’m concerned he has altered the image enough to make it his own. His work has also increased the value of the original photo which is relevant in cases like this.

  19. Bodhi says:

    Breederina~ The AP never filed a suit aginst Fairy. They publicly demanded money & probably hoped that he’d settle to get it over with. The article in the Times & sourced in the link begins with:

    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.

    And JayBird’s post begins with:

    The artist who drew the now famous Barack Obama posters with the word “HOPE” is suing the Associated Press ahead of an expected lawsuit from them.

  20. breederina says:

    Ahh, apologies Bodhi and Jay Bird. I had read this long article on it in the local rag w/ various legal opinions so I just assumed, skim reader that I am. Still love his work madly. Actually own one of the Move On “Yes We Did Posters”. Rooting for Shep. Emerge Triumphant!

  21. Bodhi says:

    No worries at all 🙂 I love Shep too (duh, haha!)

    The art crowd here really does look up to him & a lot of kids have come of age with Shep as an inspiration of sorts. My cousin in particular. She is in school for graphic arts (& is a huge Shep devotee) & recently won a pretty big state-wide logo design contest.

    She is amazingly talented & its so cool that those oppertunites are available here. And I really think that Shep helped open a lot of doors & clued a lot of people in

  22. Josh says:

    Legally, he would have been safe if he never admitted to using any particular image as reference anyway.

    Im happy to read that the true rights owner the photographer is happy to see such derivative uses of the work.