Shepherd Fairey Strikes Back, Counter Sues the Associated Press

Was the Iconic Shepherd Fairey Obama Hope Image Taken by Freelance Photographer Mannie Garcia?Last week I reported on the continuing controversy regarding Shepherd Fairey’s iconic image of President Barack Obama. The Associated Press had declared copyright over the image that Fairey used to make his HOPE image and now in a pre-emptive strike, Fairey has filed a lawsuit seeking to legally have his art declared as fair use.

From the NY Times:

“Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia took.

The suit asks the judge to declare that Mr. Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment.

“Fairey did not do anything wrong,” said Julie A. Ahrens, associate director of the Fair Use Project and another of Mr. Fairey’s lawyers, in a statement on Monday. “He should not have to put up with misguided threats from The A.P.” Paul Colford, a spokesman for The A.P., said on Monday that the agency was “disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey’s failure to recognize the rights of photographers in their works.” “

It will be interesting to watch how the courts rule on this one. Still in question as well is whether or not the A.P. even actually own copyright on the original image given that photographer Mannie Garcia took the image without any contract with A.P. and is not an employee or even a freelancer for A.P.