Hope Under Fire

As reported here by the Associated Press, the Fair Use Project is representing visual artist Shepard Fairey in connection with the AP's claim that his iconic work in support of President Obama's campaign infringes the AP's copyrights. More soon.

Updated AP story.


Thanks for creating a post that has sparked such lively discussion. I am keenly interested in the this case because the law as it stands can be quite vague. In my book, what the artist did was take points of inspiration from the picture and create a work that is different in substance. The artist was trying to convey that the President embodies the ideals of America by painting him in our national colors. To say that the AP photo does that is a stretch. Sure, it is a flattering photo, but it does not paint him as a patriot.

I just read a copy amicus brief on this site that opposes the injunction on the '60YL' derivative book by Colting about Holden Caulfield's possible life 60 years later.
The brief reads to me as a very interesting and thorough refutation of the District Court's granting of the initial injunction preventing the release of 60YL.
I'm just wondering if the whole notion of transformative use of the Obama image above is similar to the rationale and facts applied in the brief to both 60YL and Blanch v. Koons? If its a sufficiently transformative work that only uses elements of the original to convey a different message than the original, isn't it a fair use, regardless of ownership? Did the image really affect sales of the original image?
I have yet to take Intro to IP law or copyrights, and I'm sure there is slightly different law up here in Canada than there is in the US (ie. moral rights are a part of Cdn copyright law) but it seems to me that the principles are similar enough. I like the openness and broad applicability of US fair use doctrine, compared to the narrower statutory 'fair dealing' exemptions.
Looking forward to the rest of law school...


First of all the painting is good. I appreciate the painter Shepard Fairey for his wonderful creature. But i don't understand what he want's to prove? Well i would say thanks for the post and people keep send the reply so that i can understand it better.http://www.Start-an-Internet-business.net

The AP just wants money that's why they are all over it. the only thing that is the same is the facial expression.I feel that the AP should stop being soo greedy with a face image. You cant copyright the mans face so just leave it alone.

As an artist I wanted to thank you for doing this. Copyright ignorence is so pervasive that we desperatly need people like you enlighten us about fair use and how/why it is important to protect it.

i'm delighted that the AP story about fairley brought your organization to my attention.
it's puzzling to me that sound and images (even tattoos) have created a copyright/fair use complexity that text (to my knowledge) has and does not. is this a problem of faulty legal conceptualization, faulty precedent, or bad legislation? an article on that theme ought to be available on your site.
i find it especially offensive that museums, libraries and information media are often among the most vigorous to seek injunction or financial remedy for "infringements" -- they should be at the forefront of protecting the free exchange of images, data and sound as essential to the fabric of contemporary free speech.
the DMCA needs substantial revision and redirection -- i hope this case contributes to that end.

What if it had not been an AP photograph? People are making this into an AP bullies Shep story. The fact remains that Shep has stolen from Rene Mederos and many other artists. He has settled out of court numerous times. If he supports fair use why did he send Baxter Orr a cease and desist letter? You need to check out the Myartspace Blog and some of the criticism Brian Sherwin has posted about Shepard Fairey. It might put things in perspective for you.

The point isn't that Shepard did not make money off of the print. In fact Shepard has profited enormously from the print in an indirect way due to publicity. Beyond that the AP will be donating any money won in the lawsuit to further defend artistic rights of photographers, they will not profit from the lawsuit.
The other point isn't that the AP is bullying him, it could have been any photographer that Fairey stole from. Fortunately it was the AP, who has the clout and the balls to stand up for the rights of their photographers.
But where do you draw the line oh freedom fighting fair use people. What if another artist/corporation rips off Fairey? Will you defend him still?
What happens when artists get ripped off, it seems as though artists don't like it when the table is turned. Fairey has issued numerous cease and desist letters to people he deems are infringing on rights he owns to his work. Certainly this artist didn't like it when someone tried to sell something that wasn't even a direct copy like Fairey but simply inspired by the artist:http://english.kaikaikiki.co.jp/regarding_the_amicable_settlement/
So what will come of this Stanford Fair Use? What if you win your case and loosen the fair use doctrine. Then what if the result is artists getting ripped off instead of photographers. What happens then and whose side will you take?

In my family of artists (3 generations), my grandmother makes art that is inspired by photographs from my father...so needless to say I'm fascinated with this case and have been following closely! Do you know where I could find copies of the documents filed in Federal court today, NY dist. (monday, feb 9)?
here's my blog on the entire case:http://www.shamptonian.org/2009.02.08/the-ap-vs-shepard-fairey/
PS of course, after today, I'll have to change the name of my post to Shepard Fairey vs. AP!

What do they talk about.
I have worked as a stinger for AP and later seen the pictures I took under a different byline.
Of course I am not using my real name when writing this comment but when I took the picture that I am talking about there was no other stringer nor AP photographer thereabouts.
I got paid a fee for the picture at the time I took it, a flat sum but then all the time that the picture ha being retransmitted in different years I have seen zilch.
I realize that this has nothing to do with fair use but it shows the spirit under the big multinational AP works.
How can they claim copyrigth when it is a human face that the poster represents?

Mr. Falzone
I have litigated plagiarism cases for over 40 years and co-authored the copyright
treatise " Substantial Similarity In Copyright Law " with Eric C. Osterberg. Any further
details about us can be found through a Google search.
All of the publicity concerning the AP claim suggests it is being defended solely on the
fair use argument. I recognize that is your principal interest and that the reporting may
be leaving out additional argument. Nevertheless, It is my opinion that there is another
important defense to be made which I believe it should be raised on Mr. Fairey's behalf.
Although photographs are generally copyrightable, certain photographs that are intended
to reproduce a public domain subject with absolute fidelity lack copyright originality.The
photograph of Barack Obama, although distinguishable from the decided cases cited in
our treatise (Sec.10:1), arguably is of that nature. I hope you will consider the possibilty.

Although I'd agree that AP is raising its voice because of the profits they stand to make in royalties, Shepherd Fairley should have at least credited AP as the source of the photo. He has already admitted that the photo he used was theirs. As a photographer, if someone thought a photo I'd shot was special enough for them to use for their art piece, I'd like a nod for my work.

Are you guys accepting any donations for the defense?

I second that. This suit is absurd and I want to contribute to see it squashed.

The AP is all over this strictly because they want money. Their greed is showing. The two images are nothing alike EXCEPT his face expression, and not even the same tilt. You can not copyright someones face. I have lost all respect for the AP. I can't believe they would even try to do this. Its a shame that people are already taking advantage of the Obama craze from Ty Beenie to now this?!?! Are you kidding me?!?!?! And if they were so concerned about it, why wasnt this brought up at the start? The only reasons its brought up now is because of the craze on such a historic event.

I never would have thought that this artist would be sued for using a public photo. I researched the artist because I think his work is phenomenal, the fact that the Obama administration decided to use his work in the campaign speaks highly of the artist.

>The AP is all over this strictly because they want money. Their greed is showing.

Truly enjoyed reading this. You are right on.

I'm a little embarrassed for Stanford that they are crying fair-use when a man admits to copying the entire subject of someone else's work and is profiting mightily from it. Agree or disagree with what *should* be legal, but an intellectually honest person educated in IP law should know the painter probably violated copyright law as it is currently understood by the courts.
Angi, using the headline about copyrighting someone's face is a simple straw man. No one is arguing that the AP holds the copyright to Obama's face. They are arguing that this specific instance of Obama's image as created by their photographer is copyrighted.
I'm confident you're correct that the AP's motivation is money. That's because they are a business and they make money by paying photographers to take great pictures that they then sell.
I think a good argument could be made that the painting has made the photo more valuable, but that does not remedy the simple fact that the painter had a legal responsibility to aquire from the AP the rights for reproducing this image. I think the Obamania has gotten in the way of some peoples' logic if they view the AP as the villain and the painter as an innocent victim and I believe the courts will correctly point out that the AP had its rights violated when the painter decided to profit from the AP's copyrighted work.

Obviously you don't understand what is fair use. I take it your not an artist or even create things. Artists' are influenced by the past DUH. There are those people out in the world who think we should still be living in caves. Yah ques you might want to take a look at the big picture. Oh I take that back you might be able to create a picture with the press of a button.

I could have had a great career as an artist, except I made the mistake of printing colorful serigraphs of Marilyn's face and Life magazine dragged me into a lawsuit for 3 years. Then the Campbell soup company took away my home due to a judgement against me for using their copyrighted soup can labels in my paintings.
But, that's the way it is. That's the law as it's currently understood by the courts.
Well my 15 minutes are up, gotta go.

Contrary to your understanding of copyright law, the act of "copying" does not automatically = copyright infringement.
You assertions are troubling,and contradict the point of having "fair use" in the first place. When its all said and done, I am confident that the courts will find that the use of the AP photo was fair because the artwork that was born from it was transformative and a new original work of art. Fairey did not violate any copyright by using an image from AP as a "Reference".

The fact that the painter was inspired by Mr. Obama and, as he could evidently not have the real person as model, that he used the AP photograph as a source does not constitute a copyright infrigement per se.
What if, instead of being a painter, he was a musician or a poet and, with the very same picture in front of him, he had created a text or a music ? Could the AP still act as it does ?
The fact that the creation is of the same kind than the photo can make its author possibly accused of plagiarism, but certainly not copyright infrgigement imho.

The AP should be laughed out of court. No matter what photo one has of Obama, there is no guarantee that nobody else saw him in that same pose and took another picture. No matter what you try to argue, I'm pretty sure Pres. Obama will almost always look like President Obama. This poster is a likeness of the president, not a photo; colors are added that lended interpretation to the likeness. Others may take that photo and paint many things to express their interpretation. The AP action has no basis; there will be thousands of pictures that may look just like theirs, but just like other moments in history, it is not owned -- just memorialized. Maybe the AP needs to lay-off some of these people with too much time on their hands, so they don't have to stifle an honest artist. A directed verdict or a 12b6 motion granted is all the AP deserves.

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