AP Files Counter Lawsuit Against Obama Poster Artist

 

NEW YORK, NY (March 11, 2009) – Today the Associated Press filed a counter lawsuit against the Barack Obama poster artist Shepard Fairey in federal court in Manhattan claiming that the artist and his companies were "fully aware that the AP photo Fairey based his iconic Obama poster upon was a copyrighted image," and that the artist "misappropriated AP's rights to their photograph without giving notice, credit, or compensation."

Fairey sued AP first, on February 9, asking the United States District Court, Southern District of New York, for a declaratory judgement and injunctive relief, seeking the court's ruling that he did not violate AP's copyright and saying that his use of AP's Obama photograph was a "transformation" which resulted in a "new" work of art that is covered by the Fair Use Doctrine.

AP's countersuit today in the same court defends against Fairey's claim as well as it seeks credit and compensation for the photograph's use. AP, which says it is suing to defend its intellectual property rights, says in the suit that "the posters and other merchandise based on the AP photo 'copy all the distinctive and unequivocally recognizable elements of the [photo] in their entire detail, retaining the heart and essence of [the AP photo], including but not limited to its patriotic theme.'"

“This lawsuit is about protecting the content that the Associated Press and its journalists produce every day, with creativity, at great cost, and often at great risk,” said Tom Curley, AP's president and CEO.

“The journalism that AP and other organizations produce is vital to democracy. To continue to provide it, news organizations must protect their intellectual property rights as vigorously as they have historically fought to protect the First Amendment.”

In the lawsuit AP makes four counterclaims against Fairey:

• The first is their claim that the artist has infringed AP's copyright to their Obama photograph (shot by Mannie Garcia);
• The second counterclaim is that Fairey has "encouraged, assisted, induced, caused, and/or materially contributed to a vast number of actual or imminent copyright infringements" of the Obama photograph;
• The third counterclaim is that Fairey improperly obtained copyright registrations for three of his "infringing works," by filing copyright registrations that were "unauthorized" on his derivative works which were created using the Obama photograph, which AP had already registered for copyright;
• The fourth counterclaim is that Fairey violated the Digital Millennium Copyright Act when he "intentionally removed and/or altered" AP's copyright information from the Obama photograph.

For his infringement, AP's suit claims that they are entitled to recover actual and statutory damages, costs, attorney's fees, and an award "three times the greater of" either the defendant's damages plus interest, or the plaintiff's profits. That amount has not been determined and AP's suit asks the court for an accounting of Fairey's profits.

AP's counterclaim alleges, “Fairey could have selected from any one of countless images of President Obama in making his posters and other merchandise, or simply drawn him from life or taken his own photograph to use for his posters and other merchandise. Instead, Fairey was drawn to the unique qualities of this particular photograph,” made distinctive by the photographer’s creative and artistic input. It goes on to note that “Fairey has done nothing that would excuse his blatant copying of, and creation of derivative works based on, the [AP photo].”
 
Fairey’s unauthorized use of the photograph, AP's suit says, “is part and parcel of [Fairey’s] willful practice of ignoring the property rights of others for his own commercial advancement,” and that the practice “contrasts dramatically with his aggressive and hypocritical enforcement against others of his own intellectual property rights.”
 
AP’s counterclaim notes that licensing “is an important source of revenue for content creators, be they news or entertainment companies. This is especially true for [AP] and particularly in these difficult times. As a news agency, licensing of content is fundamental to [AP’s] existence.”

If Fairey were to succeed in his suit, AP says in their suit today, it “essentially would permit someone to take and commercialize a content owner’s property without attribution or reasonable compensation, undermining the long-established practice of using such revenue streams to support the ongoing creation of new content.” 
 
The counterclaim also alleges that “AP had made every effort amicably to enter into a license and avoid litigation,” with any proceeds received from Fairey for past use of the AP photo to be contributed by the AP to the AP Emergency Relief Fund, a charitable fund which distributes grants to staffers and their families who are victims of natural disasters and conflicts.

AP's lawsuit also addresses Fairey suing AP first. "In the midst of discussions [Fairey and one of his companies] jumped the gun and filed this lawsuit anticipatorily in an attempt to gain a procedural advantage," the suit says.

Read earlier coverage of the dispute

 

 

NPPA Marketplace

Insure Your Equipment

You go where the action is….so should your insurance! Hays delivers comprehensive insurance for your gear - covering cameras, computers, editing equipment and rental.

Join the NPPA

NPPA members receive a wide range of benefits, from educational opportunities to mentoring, exclusive discounts, insurance options, business tips, and much more.