The Associated Press, Shepard Fairey, and Mr. Fairey’s companies Obey Giant Art, Inc., Obey Giant LLC, and Studio Number One, Inc., have agreed in principle to settle their pending copyright infringement lawsuit over rights in the Obama Hope poster and related merchandise.
Mr. Fairey used an AP portrait photograph of Mr. Obama in making the Hope poster. Mr. Fairey did not license the photograph from the AP before using it. The AP contended that Mr. Fairey copied all of the original, creative expression in the AP’s photograph without crediting or compensating the AP, and that Mr. Fairey’s unlicensed use of the photograph was not a fair use.. Mr. Fairey claimed that he did not appropriate any copyrightable material from the AP’s photo, and that, in any event, his use of the photograph constituted a fair use under copyright law.
In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.
“The Associated Press is pleased to have reached resolution of its lawsuit with Mr. Fairey,” said Tom Curley, president and CEO. “AP will continue to celebrate the outstanding work of its award-winning photographers and use revenue from the licensing of those photos to support its mission as the essential provider of news and photography from around the world. The AP will continue to vigilantly protect its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use.”
“I am pleased to have resolved the dispute with the Associated Press,” said Mr. Fairey. “I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images. I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP’s talented photographers.”
The AP’s copyright infringement lawsuit against Obey Clothing, the marketer of apparel with the Hope image, remains ongoing.
While Shepard claims to still believe that he is in the right in this issue due to fair use (which I would agree with), both this settlement and his post-lawsuit behavior says that he is, at least, being much more careful about appropriating imagery. It sounds like the settlement may result in a series of licensed AP/Shepard Fairey collaborations and Shepard has recently been giving photographers credit for basing his work on their photos and starting to call the work collaborations between him and the photographers, so I’m guessing that he’s licensing those images.
For artists, it’s too bad that this didn’t end up in court as a test of fair use, but the suit certainly wasn’t helping Shepard, so it’s no surprise that he is now working towards a settlement.
But it looks like it isn’t all over, with a separate lawsuit continuing against Obey Clothing for pretty much the same reasons. Perhaps the issue of fair use will be sorted out there.
Photo by sushiesque