The drama heats up in SHEPARD FAIREY's fight with the ASSOCIATED PRESS after the agency filed a lawsuit last week claiming rights to the artist's BARACK OBAMA campaign imagery after learning the work was based on an existing AP photo. Today, THE FAIR USE PROJECT at STANFORD LAW SCHOOL’S CENTER FOR INTERNET AND SOCIETY (who is working Fairey's case pro bono) and San Francisco-based law firm DURIE TANGRI LEMLEY ROBERTS & KENT LLP filed a counter suit against the Associated Press on Fairey's behalf:
"The Fair Use Project at Stanford Law School’s Center for Internet and Society and San Francisco-based Durie Tangri Lemley Roberts & Kent LLP filed a lawsuit today against the Associated Press (AP) on behalf of Shepard Fairey and his production company Obey Giant Art, Inc. in connection with the series of iconic works Fairey created to support the candidacy of President Barack Obama.
Last week, the AP accused Fairey of infringing copyrights it says it holds in a photograph that was taken of Barack Obama by photographer Mannie Garcia at the National Press Club in 2006. The lawsuit, filed in the U.S. District Court for the Southern District of New York, seeks a declaration from the Court holding that Fairey did not infringe AP’s copyrights in creating the now-famous Obama Hope poster and other related works, as well as an injunction against further assertion of copyrights by the AP against Fairey or anyone else who displays his work.
“There should be no doubt about the legality of Fairey's work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at Stanford Law School, who is leading Fairey’s legal team. “He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.” Click HERE to continue reading...
You'd literally have to be living under a rock lately to have not heard the news that Supertouch's SHEPARD FAIREY is currently being sued by the ASSOCIATED PRESS for his use of an image the agency is now claiming dominion over after the artist used it to create the most iconic piece of American political art of all time. Today, the esteemed HUFFINGTON POST is pulling the AP's card with Jonathan Melber holding the pen:
THE AP HAS NO CASE AGAINST SHEPARD FAIREY
By Jonathan Melber
(Co-author of "ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career")
Huffington Post, February 8, 2009
A few days ago, the Associated Press announced that Obama's famous HOPE poster amounts to copyright infringement. The artist behind the poster, Shepard Fairey, has never hidden the fact that he based his iconic creation on a photograph he found through Google. The AP thinks it owns the copyright to that photograph, since Mannie Garcia was freelancing for the AP when he shot it. With posters sold out, a special edition in the National Portrait Gallery, and major exhibitions in New York and Boston, the AP wants in on the windfall.
But the AP would very likely lose this case if it ever ended up in court. That's because, under copyright law, Fairey's work almost certainly qualifies as "fair use" of Garcia's photograph.
The term "fair use" gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person's original creative work. That means you're typically not allowed to create work using someone else's original unless you pay that person. "Fair use" is an exception to this rule: it says that sometimes you don't have to pay someone to use his or her original work. Whether you do--that is, whether your new work qualifies as "fair use"--depends on what, exactly, the original work is, how much of it you're using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is "fair.")
By far the most important factor is how you transform the original work--but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one.
Take, for example, an influential 2006 decision vindicating Jeff Koons. A fashion photographer named Andrea Blanch sued Koons for using a picture of hers in one of his paintings without paying her. Koons had scanned her photograph, which she had taken for a Gucci ad, and cut and pasted it into a digital composition he then painted. The federal appeals court said that Koons didn't need to pay Blanch to do what he did, because of how thoroughly Koons had transformed the photograph. Click HERE to continue reading...
Given our increasingly frequent discussions of the concept of “FAIR USE” in the art world, we at Supertouch thought now was a good time to reprint (using the article’s creative commons license) "Fair Use it or Lose it..." one of our favorite pieces of writing on the subject. Written by MARJORIE HEINS and published on the website of nonprofit action agency FAIR (Fairness & Accuracy In Reporting), the piece is an erudite discussion of the copyright and trademark issues crucial to the increasingly central “remix” culture that is a driving force in modern art and creative endeavors. HAVE A READ:
FAIR USE IT OR LOSE IT
Copyright owners’ threats erode free expression
By Marjorie Heins, Extra! May/June 2006
Tom Forsythe is an artist with a mission. In 1997, he created “Food Chain Barbie,” photographs depicting the iconic doll interacting with various kitchen appliances. The results—“Malted Barbie” and “Barbie Enchiladas,” among others—were intended, Forsythe said, “to critique the objectification of women associated with Barbie.”
Barbie’s manufacturer, Mattel, sued Forsythe for copyright and trademark infringement. Eventually, a federal court ruled for the artist, finding that “Food Chain Barbie” was protected as a “fair use” under both copyright and trademark law. The court explained that there are great public benefits to allowing critique of cultural icons. Letting Forsythe use Barbie’s image encourages “the very creativity” that is at the heart of copyright law.
This was a success story for free expression, but it cost four years of bruising litigation. Most people threatened with suit cannot afford the risk, the cost and the stress. (Forsythe was helped by pro bono counsel recruited by the ACLU.) Often, they cave in to “cease-and-desist” letters or legal threats, even though they might have a legitimate fair use defense.
Fair use is an essential part of intellectual property (IP) law, which includes the law of copyright and trademark. It allows anyone to copy part—sometimes all—of a work without permission, for purposes such as commentary, criticism, news reporting and education. The copyright law lists four factors to be considered in evaluating a fair use claim: the purpose and character of the use; the nature of the copyrighted work; the amount and importance of what was copied; and the effect on the market for the copyrighted work. There are also fair use and First Amendment defenses in trademark law. Read More