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The judge presiding over the ongoing lawsuit between street artist Shepard Fairey and the Associated Press concerning the use of a photo of…

shepard fairey AP obama image

The judge presiding over the ongoing lawsuit between street artist Shepard Fairey and the Associated Press concerning the use of a photo of then-candidate Barack Obama told the parties they should settle and that “sooner or later” the wire service would prevail, the AP reported. But it didn’t convince the opposing sides, who appear as ready as ever to see the case through to at least the next level.

In an e-mail message to paidContent, Fairey’s attorney Geoffrey Stewart said, “We don’t believe Judge Hellerstein’s statement in court today indicates a pre-judgement of the case. We continue to believe there is a strong basis for fair use in this case, and Judge Hellerstein made clear that he hasn’t even begun to focus on the fair use issues.”

The judge made his remarks during a hearing in New York where, according to the AP report, he ordered Fairey’s lawyers to hand in records of discussions Fairey had with his attorneys before he filed a pre-emptive lawsuit against the AP in February 2009. The artist filed his suit after the wire service claimed that his use of a 2006 photo of Obama taken by then-AP photographer Mannie Garciain in creating his famous Hope and Progress posters.

The AP countersued Fairey the next month. The news co-op claims that Fairey used the Obama photo

  1. If the AP owns Obamas likeness
    What does Obama own

    Fair use … duh!
    He’s a politician.

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  2. The point of copyright is to incentivize the production of original work. If we lose this case, what will that say to photographers who take pictures for us of world leaders and events, knowing that someone else can reap the financial benefits of it?”

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  3. This is in many ways a landmark case. It doesn’t surprise me that designers who bank on re-contextualizing popular imagery such as Fairey wouild fight so hard…. their careers depend on it.

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  4. A great example of why copyright should exist to protect creative material, for at least a certain period of time and why others who are using it should ask for permission first.

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  5. andrefriedmann Friday, June 11, 2010

    @hhkeller
    Don’t miss the intellectual property law discussion conducted by non-lawyers at http://www.aphotoeditor.com/2009/02/04/obama-poster-may-get-an-apmanny-garcia-credit-line/
    You’ll feel right at home, especially if you think the Associated Press’s claim of copyright ownership in Manny Garcia’s photographs (a right that includes determining who, if anyone, can make derivations) is the same thing as a claim to own Obama’s likeness.

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  6. Fairey’s lawyer dropping out is probably a blow to his ego but it doesn’t necessarily blow his case. It’s a common myth that Fairey’s discovery faux-pas amounted to a game changer regarding how the court will rule when it gets to the merits of his case. So although perjury is a pretty serious legal no-no, that doesn’t mean much in a copyright infringement suit

    Abuse of discovery is completely independent of the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse warrant sanctions and even jail time but the precedent is on his side that bad faith isn’t really pertinent in fair use.

    As much as I’d like to see the court find fair use here, I don’t think it’s necessarily open-and-shut fair use on its face because of the effect on the market factor.

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