Editor's note: The Associated Press and the artist who created the Obama "HOPE" image announced Jan. 13, 2011, that they had agreed to settle their copyright-infringement claims against each other and would work together again in projects that use the news agency's pictures.
NEW YORK — The Associated Press countersued an artist yesterday over his
famous image of Barack Obama, saying the uncredited, uncompensated use of an AP
photo violated copyright laws and signaled a threat to journalism.
The artist, Shepard Fairey, sued the not-for-profit news cooperative last
month over his artwork, titled "Obama Hope" and "Obama Progress," arguing that
he didn't violate copyright law because he dramatically changed the image.
The artwork, based on an April 2006 picture taken for the AP by Mannie
Garcia, was a popular image during the presidential campaign and now hangs in
the National Portrait Gallery in Washington.
According to the AP lawsuit filed in federal court in Manhattan, Fairey
knowingly "misappropriated The AP's rights in that image." The suit, which also
names Fairey's companies, asks the court to award AP the profits made from the
image and damages.
"While (Fairey and the companies) have attempted to cloak their actions in
the guise of politics and art, there is no doubt that they are profiting
handsomely from their misappropriation," the lawsuit states.
Fairey said he looked forward to "upholding the free expression rights at
stake here" and disproving the AP's accusations.
"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," the artist said in a statement. He initially
made the image available as a poster, donating the proceeds to charity or using
them to make more posters, he said.
The red, cream and light-blue image depicts a pensive but determined-looking
Obama gazing upward, with the caption "HOPE" or "PROGRESS." It went on to become
a familiar sight on buttons, shirts and other objects, garnering Fairey a
thank-you letter from Obama and more than $400,000 in profits, according to
Fairey's lawyers acknowledge the image is derived from Garcia's photograph,
made at the National Press Club in Washington while Obama was a senator.
But Fairey's lawsuit claims he didn't violate copyright law because he
transformed the picture into a "stunning, abstracted and idealized visual image
that creates powerful new meaning and conveys a radically different
The AP argues the Los Angeles-based artist's image amounted to "blatant
copying" and commercializing of another's work. Fairey piggybacked on the AP
picture's "distinctive characteristics," including its composition, light and
shadows, the cooperative's lawsuit claims.
The AP contends news organizations need to protect their
intellectual-property rights so they can continue providing information, an
endeavor financed in part by licensing their material to others.
"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," AP President and CEO Tom Curley said in a statement. "The
journalism that AP and other organizations produce is vital to democracy."
The dispute turns partly on the legal concept of fair use, which allows
exceptions to copyright law. Courts decide based on factors including how much
of the original is used, what the new work is used for and how the new work
affects the original.
Copyright and fair-use fights are gaining more attention as digital
technology makes it easier to find and use images, songs and other creative
The cooperative said it tried to work out a license agreement with Fairey and
agreed to donate proceeds from his prior use of the photo to a charitable fund
that helps AP staffers who suffer personal losses in natural disasters and
conflicts. Fairey cut off negotiations, the AP's lawsuit said.
A street artist known for a rebellious bent, Fairey, 38, pleaded not guilty
yesterday to 12 counts of vandalism in Boston. A spokesman for prosecutors said
the charges were related to the artist's Obama and "Obey Giant" stickers, posted
around the city.
Fairey issued a statement saying he was not involved in posting the stickers
in Boston. He noted that his art is widely available online.
Fairey has been arrested numerous times on charges of drawing on buildings
and other private property without permission.