The Associated Press, Shepard Fairey Reach Settlement In Fair Use Lawsuit

After nearly two years battling it out in court, the Associated Press and street artist Shepard Fairey have agreed to settle their main copyright infringement lawsuit over rights in the “Obama Hope poster” and related merchandise. Neither side had to concede their point, though Fairey has promised that he will not use another AP photo in his work without first receiving a license from the news organization.

The two sides will share the rights to make and sell the Obama Hope posters, which Fairey created during the presidential campaign by stenciling an AP photograph of the candidate. In addition, Fairey and the AP will collaborate on a series of images that Fairey will render based on AP photographs. The financial terms of that arrangement were not disclosed. Still, not all the legal issues have been taken care of, as the AP’s copyright infringement lawsuit against Obey Clothing, the marketer of apparel with the Hope image, will still continue, the AP said.

The legal odyssey began in Feb. ’09, when Fairey, who had gained fame from the adoption of his Hope poster during the 2008 presidential campaign, initiated a pre-emptive lawsuit against the AP. At the time, he was assisted in the effort by Stanford Law School’s Fair Use Project.

In turn, the AP countersued a month later, claiming Fairey used a 2006 photograph taken for the wire service by then-AP photographer Mannie Garcia “without permission from the AP, or any form of credit or compensation to the AP or attribution to the photographer.” (Garcia, now a freelancer, has said he doesn’t want to be part of the dispute.)

For Fairey, who was little known outside of the art world, the image catapulted him from street artist to simply artist as he became recognized by established institutions and earned millions from the sale of the image he copyrighted under Obey Giant. (A rep for Fairey pointed out that the artist has donated all proceeds from the sale of items related to the Hope image to charity and to support the production of more posters.) His basic argument, which he does not have to disavow as per the agreement, is that many artists have cited fair use in the appropriation of existing images throughout the history of art and that this was no difference. In a sense, he was doing for the AP’s photo what Andy Warhol did for Brillo boxes in the ’60s.

For the AP, the ability to make a business out of selling their photographs and digital images is viewed as a crucial revenue stream at a time when newspapers and other members find themselves financially squeezed. Being able to protect its rights to images, especially ones that have already served as the basis for millions of dollars of sales on t-shirts, coffee mugs and the like, is particularly attractive, hence the reason for settling. It’s just as likely that the AP and Fairey will eventually settle on the outstanding apparel lawsuit as well, given that they’ve otherwise agreed to become partners on keeping the Hope image alive as a marketable item, a year before the next presidential campaign goes into full swing. More details in the AP’s release.