Legal News

A ?Hope?ful Lawsuit: Sizing up Fairey v. AP

By Dan Slater

Suzanne Sataline, a reporter new to the Journal’s New York office, kindly ginned up the following post.

When a widely shared photo of one of the world’s most public figures is turned into art by someone else, who owns the image? That questions punctuates an unusual copyright spat pitting an international news service against a Los Angeles street artist over a president’s image. Click here for the NYT article.

Artist Shepard Fairey acknowledges using a 2006 Associated Press photo of then-senator Barack Obama as the basis for his iconic red and blue “Hope” poster, reproduced on buttons and banners through the campaign. When the AP pressed Fairey for credit and compensation, Fairey sued the AP in U.S. District Court in Manhattan. His lawyers said the artist transformed the image that “conveys a radically different message” and thus, falls into fair-use territory.

As AmLaw Daily noted: The case will again match Fairey’s counsel — former Bingham McCutchen partner Anthony Falzone, now executive director of Stanford Law School’s Fair Use Project — and AP lawyer Dale Cendali of O’Melveny & Myers. Last spring the two faced off during the trial over a fan’s attempt to publish a Harry Potter lexicon. (Cendali, representing Potter author J.K. Rowling, successfully stopped the book’s publication.)

Wendy Seltzer, a law professor at American University and a fellow at Harvard’s Berkman Center for Internet & Society said she doesn’t think much of the AP’s claim. “Most of what is in the image is the un-copyrightable image of President Obama,’’ she said. And the fact that Fairey’s product was political is important. “Commentary is already a recognized category of fair use,” she said. “So political commentary is given an added bump on the fair use scale . . . If someone had to tried to appropriate that image for a news story without paying the AP, that would have been unfair. But making it into a poster commentary on the election campaign, I think that is not something the copyright monopoly should cover.’’

But Howard Weingrad, a partner with New York’s Davis & Gilbert, a specialist in intellectual property, cautioned that AP’s claims can’t be easily brushed off. His said his “gut reaction’’ when looking at the two works side by side is that “there was a little too much taking from the photo. Particularly the lighting, the shading and the right side of the face.’’ That it was transformed into political speech “still doesn’t mean they can run roughshod over the photograph and maintain its copyrightable elements,’’ said Weingrad, an intellectual property specialist. “ There are copyright principals in play here that could be eroded if we don’t carefully consider if this is transformative enough to qualify for fair use.’’

Fairey has suffered other artistic travails of late: he was arrested Friday at the opening of a retrospective of his work at the Institute of Contemporary Art in Boston. Police served two outstanding warrants accusing the artist of “tagging” or posting graffiti of Andre the Giant and the word “obey.” Jeffrey Wiesner of Boston’s Stern Shapiro Weissberg & Garin is representing Fairey in the criminal case, AmLaw Daily noted.

If the AP prevails, would there be a domino legal effect? Could Fairey go after other groups that borrowed his work and tweaked it? One comes to mind: organizers of the annual Big Shoulders Swim race in Lake Michigan handed out t-shirts to participants last September in Chicago. It featured a Fairey-like Obama wearing goggles with the word “SWIM” printed beneath (Click here and scroll down for pictures).

Full post as published by Law Blog - WSJ.com on February 10, 2009 (boomark / email).