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Summary:

The Associated Press’ litigation over Shepard Fairey’s 2008 “Obama Hope” design, which was based on a photo by AP photographer Manny Garcia,…

shepard fairey AP obama image

The Associated Press’ litigation over Shepard Fairey’s 2008 “Obama Hope” design, which was based on a photo by AP photographer Manny Garcia, appears to be drawing to a close. The wire service settled with the artist last year, but did not settle a claim against Obey Clothing, the retailer that sold the design. That litigation was scheduled to go to a jury trial beginning Monday morning, but now the two sides have reached a settlement, the AP said this morning.

The settlement also ends a lawsuit the AP filed last week against three other retailers who sold T-shirts and other apparel based on the design. Those retailers never responded to the suit, but the apparel was distributed by Obey Clothing, so those retailers may have been looking to Obey Clothing to indemnify them.

Under the agreement, the AP, Obey Clothing, and Fairey will “collaborate” to create and sell apparel using Fairey graphics that are based on additional AP photos. The settlement has other terms, but like in the settlement with Fairey, they’re confidental. Given the way this lawsuit progressed-with the judge ruling recently that Obey Clothing wouldn’t be allowed to use a “fair use” defense at the trial-it’s very likely those additional terms include payments to AP.

In this morning’s statement, AP President and CEO Tom Curley said: “While it was a long road with many twists and turns along the way, the AP is proud of the result and will continue to vigorously defend its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use.”

Don Juncal, president of Obey Clothing, said: “The Associated Press has an impressive archive of work provided by talented photographers. We look forward to working with those photographers, as part of our long-standing relationship with Shepard Fairey, to produce and market apparel with the new images that will be created.”

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  1. Peter Friedman Thursday, March 17, 2011

    Exactly where and when did the judge order “that Obey Clothing wouldn’t be allowed to use a “fair use” defense at the trial”? Any settlement likely does include payment to AP, but it also likely involves considerably less money than AP would have gotten had it won the case. That’s why these things are negotiated resolutions of the lawsuits. Unless, of course, you’re right and the judge already ruled that Obey Clothing would lose. But, honestly, I am unaware of any such ruling. Can you enlighten me? The link you provide for that statement does not in fact support it.

  2. Peter, you’re right—that link was not the correct one. Thanks for pointing it out. I’m going to fix it, and meanwhile, here’s the right link.

    http://paidcontent.org/article/419-judge-deals-setback-to-retailer-that-sold-obama-hope-shirts/

    So yes… the judge did rule that a ‘fair use’ defense can’t be used. It wasn’t good news for Obey Clothing. It also wasn’t too clear why the judge made such a ruling, because the transcript of the hearing wasn’t available on line when I wrote that piece; I’ll have to go back and check.

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