COPYRIGHT INFRINGEMENT CASE ON

THE ASSOCIATED PRESS VS. FAIREY

SUBMITTED BY SEWANTI DHAR

MFM SEMESTER-III

SUBMITTED TO NIFT (MINISTRY OF TEXTILES), KOLKATA

The Associated Press

vs. Fairey

Photograph: Mannie Garcia 2006 (via The New York Times); Poster: Shephard Fairey
2008
The Barack Obama "Hope" poster is an image of Barack Obama designed by artist Shepard
Fairey, which was widely described as iconic and came to represent his 2008 presidential
campaign. It consists of a stylized stencil portrait of Obama in solid red, beige and (light and
dark) blue, with the word "progress", "hope" or "change" below

The design was created in one day and printed first as a poster. Fairey sold 290 of the posters
on the street immediately after printing them. It was then more widely distributedboth as a
digital image and other paraphernaliaduring the 2008 election season, initially
independently but with the approval of the official Obama campaign. The image became one
of the most widely recognized symbols of Obama's campaign message, spawning many
variations and imitations, including some commissioned by the Obama campaign. This
led The Guardian's Laura Barton to proclaim that the image "acquired the kind of instant
recognition of Jim Fitzpatrick's Che Guevara poster, and is surely set to grace T-shirts, coffee
mugs and the walls of student bedrooms in the years to come."
In January 2009, after Obama had won the election, Fairey's mixed-media stenciled portrait
version of the image was acquired by the Smithsonian Institution for its National Portrait
Gallery. Later in January 2009, the photograph on which Fairey based the poster was
revealed: a June 2006 shot by former Associated Press freelance photographer Mannie
Garcia. In response to claims by the Associated Press for compensation, Fairey sued for
a declaratory judgment that his poster was a fair use of the original photograph. The parties
settled out of court in January 2011, with details of the settlement remaining confidential.
On February 29, 2012, Fairey pleaded guilty in a New York federal court to destroying and
fabricating documents during his legal battle with the Associated Press. Fairey had sued the
news service in 2008 after it claimed that the famous poster was based on one of its photos.
Fairey claimed that he used a different photograph for the poster. But he admitted that, in fact,
he was wrong and tried to hide the error by destroying documents and manufacturing others,
which is the source of the one count of criminal contempt to which he pleaded guilty. In
September, Fairey was sentenced to two years of probation, 300 hours of community service,
and a fine of $25,000.
In 2009 Fairey's Obama portrait was featured in the book Art For Obama: Designing
Manifest Hope and the Campaign for Change which Fairey also edited.
Origin and copyright issues
The original source photograph Fairey based the poster on was not publicly known until after
Obama had won the election. After a mistaken attribution to Reuters photographer Jim Young
for a similar-looking January 2007 photograph, in January 2009 photographer and
blogger Tom Gralish discovered that the poster was based on an Associated Press photograph
by freelance photographer Mannie Garcia. It was taken at a 2006 media event
with Kansas Senator Sam Brownback, where the actor George Clooney was raising
awareness of the War in Darfur after a trip to Sudan he had taken with his father.
On February 4, 2009, the Associated Press announced that it determined "that the photograph
used in the poster is an AP photo and that its use required permission." In a press release, the
AP announced they were in discussions with Fairey's attorney to discuss an amicable
solution. Fairey was represented by Anthony Falzone, executive director of the Fair Use

Project at Stanford University. Falzone was quoted in the press release: "We believe fair use
protects Shepard's right to do what he did here." Fairey subsequently filed a federal lawsuit
against the Associated Press, seeking a declaratory judgment that his use of the AP
photograph was protected by the fair use doctrine and so did not infringe their copyright.
On October 16, 2009, Fairey admitted that he had based the poster on the AP photograph and
had fabricated and destroyed evidence to hide the fact. Fairey's admission came after one of
his employees informed Fairey that he had discovered damning documents on an old hard
drive. Realizing that these documents would expose his cover-up attempt, Fairey chose to
come clean to his attorney.
Photographer Manny Garcia contended that he retained copyright to the photo according to
his AP contract. He said that he was "so proud of the photograph and that Fairey did what he
did artistically with it, and the effect it's had," but that he did not "condone people taking
things, just because they can, off the Internet." Fairey countered that his conduct did not
constitute "improper appropriation" because he had not taken any protected expression from
Garcia's original photo. In addition, he claimed his behavior would qualify as a fair use. At
trial AP would have to address both arguments.[9]
A judge urged a settlement, stating that AP would win the case. The AP and Shepard Fairey
settled out of court in January 2011. In a press release, the AP announced that the AP and
Fairey "agreed to work together going forward with the Hope image and share the rights to
make the posters and merchandise bearing the Hope image and to collaborate on a series of
images that Fairey will create based on AP photographs. The parties have agreed to additional
financial terms that will remain confidential."
In a separate criminal action, federal prosecutors suggested that Fairey should face prison
time for the destruction of evidence in the case, with the government sentencing request
stating that "A sentence without any term of imprisonment sends a terrible message to those
who might commit the same sort of criminal conduct. Encouraging parties to game the civil
litigation systemcreates terrible incentives and subverts the truth-finding function of civil
litigation." However, his sentence was ultimately limited to 300 hours of community service
and a $30,000 fine.
Significance
Though there wasnt a court case and an actual verdict, this case created a lot of discourse
around the value of work in these copyright battles. Its unlikely that Garcias work could
have ever reached the level of fame it did, if not for Faireys poster. Garcia himself stated he
was so proud of the photograph and that Fairey did what he did artistically with it, and the
effect it has had, but still had a problem with the fact that Fairey took the image without
permission and without credit for its originator.
Shepard Fairey and The A.P. Settle Legal Dispute

The street artist Shepard Fairey and The Associated Press have settled their long-running
legal battle over the well-known Hope campaign poster of Barack Obama.
Mr. Fairey, who sued The Associated Press in 2009 as it began to accuse him of copyright
infringement for using one of its photographs as the basis for the poster, said that he did not
appropriate any copyrightable material and that his use of the photograph, which showed Mr.
Obama looking up pensively, constituted fair use under copyright law.
Last year Mr. Fairey admitted that he had misstated which A.P. photo he had used for the
Obama image and that he had submitted false images and deleted others to conceal his
actions, leading to a criminal investigation in addition to the civil case. Mr. Fairey originally
said that he had used a photograph from an April 27, 2006, event at the National Press Club
in Washington, where Mr. Obama was seated next to the actor George Clooney. Instead, the
photograph he used was from the same event, but was a solo image of Mr. Obamas head.
The photograph was taken by Mannie Garcia for The A.P.
Mr. Fairey said that he had initially believed that The A.P. was wrong about which photo he
had used, but later realized that the agency was right.
In settling the civil lawsuit, The A.P. and Mr. Fairey have agreed that neither side surrenders
its view of the law, The A.P. said in a statement on Wednesday. Mr. Fairey has agreed that
he will not use another A.P. photo in his work without obtaining a license from The A.P. The
two sides have also agreed to work together going forward with the Hope image and share
the rights to make the posters and merchandise bearing the Hope image and to collaborate
on a series of images that Fairey will create based on A.P. photographs. The statement added
that the two sides had agreed to financial terms that will remain confidential.
In a statement released by The A.P., Mr. Fairey said: I respect the work of photographers, as
well as recognize the need to preserve opportunities for other artists to make fair use of
photographic images. Contacted through his publicist, Mr. Fairey declined to say anything
more.
A separate copyright infringement lawsuit against Obey Clothing, which makes T-shirts and
other apparel with the Hope image, has not been settled and remains in court, The A.P. said.

Because of the issues at stake and the high visibility of the parties involved, the case had
shined a spotlight on the tricky legal issues surrounding the fair-use exceptions to copyright
protections. One of the central questions was whether Mr. Faireys creation, which became
ubiquitous on street corners and T-shirts during and after Mr. Obamas campaign, constituted
a transformative use of the photograph, a use that is allowed under the law so that creative
expression is not stifled.
Mr. Fairey, 40, has become one of the best-known practitioners of a guerrilla-style street art
that emerged from the graffiti scene but has expanded well beyond paint to include a wide
variety of techniques and materials. Mr. Fairey made his name plastering buildings with fakeadvertising stickers and posters showing an ominous, abstracted image of the wrestler Andr
the Giant along with the word Obey.
He decided to create the Hope poster after encouragement by the Obama campaign, which
welcomed it but never officially adopted it because of the very copyright concerns that later
erupted. Mr. Fairey has maintained that he has never personally profited from sales of the
image, a contention The A.P. has disputed.
A collaged work made by Mr. Fairey based on the poster was acquired in early 2009 by the
National Portrait Gallery in Washington, part of the Smithsonian Institution, and is now in its
permanent collection, along with portraits of George Washington by Gilbert Stuart, and
Richard M. Nixon by Norman Rockwell.

Shepard Fairey gets two years' probation in Obama 'Hope' poster case
Shepard Fairey, the Los Angeles street artist, has received a sentence of two years' probation
and a $25,000 fine in his criminal contempt case involving his "Hope" poster of Barack
Obama. The sentence was handed down Friday morning in a New York court.
The sentence included 300 hours of community service. Fairey will not have to serve jail
time.
In February, Fairey pleaded guilty to one count of criminal contempt for destroying
documents, manufacturing evidence and other misconduct. The artist admitted in 2009 to
destroying documents and submitting false images in his legal battle with the Associated
Press.
Shepard Fairey to settle 'Hope' poster case with Associated Press
Fairey's poster of Obama was inspired by a photograph taken by an AP freelancer in 2006.
The AP subsequently accused the Los Angeles artist of copyright infringement, with Fairey
maintaining that it falls under fair-use laws.

A settlement means that the March trial between Fairey and the AP in New York will not take
place. As part of their settlement, Fairey has agreed he will not use another AP photo in his
work without obtaining a license from the news organization.
The two sides also have agreed to share the rights to make the posters and merchandise
bearing the "Hope" image. In addition, Fairey and the AP have agreed to additional financial
terms that are confidential.
"I am pleased to have resolved the dispute with the Associated Press," Fairey said in a
statement. "I respect the work of photographers, as well as recognize the need to preserve
opportunities for other artists to make fair use of photographic images. I often collaborate
with photographers in my work, and I look forward to working with photos provided by the
AP's talented photographers."
A spokesman for Fairey said the artist did not have any further comment beyond his prepared
statement. However, the spokesman said that the criminal investigation into Fairey, which
involves the artist's admission that he knowingly submitted false images and deleted others as
part of the case, is still ongoing.
An assistant at Fairey's L.A. studio said the artist was out of town on Wednesday and could
not be immediately reached.
The AP's case against Obey Clothing has not been resolved, according to a lawyer for the AP.
In the past, Obey has reproduced the "Hope" image on various items of clothing that are
available for sale to the public.
"We believe that what Obey Clothing has done, which is to make lots of commercial use of
the design, is quintessentially not fair-use," said Dale Cendali, a partner at Kirkland & Ellis in
New York, who serves as the AP's lead counsel on this case. "But it is something that the AP
would happily license."

REFERENCES:
http://www.nytimes.com/2011/01/13/arts/design/13fairey.html?_r=0
https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
http://articles.latimes.com/2012/sep/07/entertainment/la-et-cm-shepard-faireyassociated-press-obama-20120905
https://storify.com/kmkrantz/shepard-fairey-vs-the-associated-press