February 10th, 2009
08:49 AM ET
10 years ago

Obama 'Hope' artist files suit against AP

Fairey stands next to his famous depiction of Obama at the National Portrait Gallery.

Fairey stands next to his famous depiction of Obama at the National Portrait Gallery.

NEW YORK (CNN) - The street artist who created the ubiquitous red, white and blue Obama "Hope" posters filed a federal lawsuit Monday against The Associated Press, which last week accused him of copyright infringement, according to court papers.

The papers argue that Shepard Fairey, 38, did not violate the AP's copyright on the 2006 photo of Obama, taken by AP photographer Mannie Garcia, upon which Fairey based his work.

The court documents, filed in Manhattan, argue that "Fairey transformed the literal depiction contained in the Garcia photograph into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photo."

A copy of Fairey's poster currently hangs in the Smithsonian's National Portrait Gallery in Washington.

In addition to a ruling that there is no copyright violation, Fairey and his production company, Obey Giant, also are seeking payment of attorney's fees and costs.

The court filing was unexpected, according to the AP.

"The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey's failure to recognize the rights of photographers and their work," said Paul Colford, director of media relations for the AP. He said the AP last week was in the middle of discussions to resolve the dispute and had reached out to Fairey and his attorneys over the weekend.

It had not filed suit.

The attorney leading Fairey's legal team issued a news release Monday saying, "There should be no doubt about the legality of Fairey's work."

"He used the photograph for a purpose entirely different than the original, and transformed it dramatically," said the release from Anthony Falzone, executive director of the Fair Use Project at Stanford University.

"The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable."

But Colford insisted that "the photograph used in the poster is an AP photo and its use required permission from AP."

On a separate issue, Fairey was arrested Friday on two outstanding warrants for property damage by graffiti, Boston police said. At the time he was en route to an opening party for his first solo art exhibition.

Officer James Kenneally said the graffiti involved images of the late wrestler Andre the Giant - Fairey's tag.

The graffiti artist is no stranger to law enforcement. In a recent interview, he told the Boston Globe he has been arrested at least 14 times.

- CNN's Jason Kessler contributed to this report

Filed under: Popular Posts • President Obama
soundoff (119 Responses)
  1. Ann

    AP owns the photo and should receive some sort of compensation.

    February 10, 2009 10:36 am at 10:36 am |
  2. Daniel Plainview

    "Go AP! Protect your artists' work."

    If AP was really concerned about protecting their photographers interests they wouldn't force them to hand over their copyright to the AP. If the Ap wins their suit the photogrpaher will get nothing and the Ap will keep any judgement they win.

    February 10, 2009 10:38 am at 10:38 am |
  3. Jer

    Has anyone seen the photograph in question? Shouldn't you compare the photograph to the painting before you jump to summary judgment?

    February 10, 2009 10:38 am at 10:38 am |
  4. Debi

    AP sues for a rendition of a photo that any person in the US could have taken over the last 2 years of a campaign.
    I have seen Obama in this pose many times. So how can AP say for sure that it was their photo he used?

    February 10, 2009 10:38 am at 10:38 am |
  5. Bill


    February 10, 2009 10:39 am at 10:39 am |
  6. warhol

    I'll bet you Warhol got permission from Campbell's–look it up.

    February 10, 2009 10:41 am at 10:41 am |
  7. Thought Criminal

    This reminds me of the legal issues involved with "sampling" in music.

    February 10, 2009 10:43 am at 10:43 am |
  8. Jill in MA

    As an artist myself, and photographer, any PROFESSIONAL artist knows that it is a violation of copyright law to use someone elses photo without their permission. What he does with it after is not what is illegal here. HE DID NOT GET PERMISSION. He has not respect for the COPYRIGHT LAW, or for other artists/photographers, He is a fraud. He has the uneducated public fooled.

    February 10, 2009 10:43 am at 10:43 am |
  9. Chris

    Come on people... If the AP was the first to take a picture of Obama looking to the left, then they SHOULD have the rights to any image of him looking to the left... including a huge payment if Obama's picture on the three dollar bill looks to the left!

    February 10, 2009 10:44 am at 10:44 am |
  10. Mariann Pepitone

    Let's get real. The artist copied that portrait from another one and used the word HOPE which was also copied from RFK. Both the artist and Obama are copiers and users of other's words and photos. The AP is right. Why did't the artist have Obama sit for a portrait instead of copying one from someone else.

    February 10, 2009 10:45 am at 10:45 am |
  11. tropicgirl

    Yeah, all it takes is a little photoshop to change a photograph into a work of art where the photographer has no say over the image. There is a "percentage of change" that is legal.

    Learn something if you are to be a respectable artist or photographer.

    February 10, 2009 10:45 am at 10:45 am |
  12. Groingo

    AP, a bunch of whiney little sissy girls, the guy made the picture something you never could have so BACK OFF!

    February 10, 2009 10:46 am at 10:46 am |
  13. RSLIttle

    First I have read nothing NOT ONE WORD BY ANYONE HERE who know anything about how copyright works. First of all the Photographer as spend HIS WHOLE LIFE to even be able to be the one that was in the position to take that image. Second Derivative works are CLEARLY covered by copyright. Copyright laws CREATED BY THE FOUNDING FATHERS NOT THE GOP. Similar works happen all the time. There are CLEAR cases of Fair use in title 17. This is not one of them. Fairly could have painted from reference but this painting EXACTLY over lays the original. Its a great image its still derivative and still a violation. All he had to do was ask permission. If you don't like how this is going down you better band together against all the Major artist oranizations that created the current copyright laws and fight to make them what they are. Not big corp. LIttle artist groups Like the AIGA and APA and ASMP and PPA and many many others. Fairly is just s selfish spoiled trust fund baby who thinks its ok to do what ever he likes without regard to the people he affects. That said His images are very important works and he can afford to pay OR JUST ask for usage rights.

    February 10, 2009 10:46 am at 10:46 am |
  14. Bill Uhlig

    Lots of jailhouse lawyerin' goin' on in here.

    February 10, 2009 10:49 am at 10:49 am |
  15. Pet Silvia

    Well, let's not get into any trouble with Getty Images, should anyone decide to take the picture of Shepard with the 'Hope' poster, and make another work of art out of this one. Or maybe someone already has and we'll read all about it in a few days. Plus, I bet Getty has a much bigger law firm behind them. Would that make it news and not art?

    February 10, 2009 10:49 am at 10:49 am |
  16. Joana S.

    from what i learned in school as a photography student its all about percentages. what percentage of the work that he produced belonged to him. unless he scanned the image and then printed it out onto canvas and painted over it, the work is completely his. its his medium and his hand that produced it.

    you cannot tell me that you can't produce a work of art based off an image that you saw and not be able to call it your own work.

    the only way i could see this being a copyright issue is if he scanned the original image and digitally altered it. then it would be like he was "painting" over the photograph and the photograph would be a major part of the final outcome.

    give it a rest already!

    February 10, 2009 10:51 am at 10:51 am |
  17. California Gold

    Josh, I'll stack my education against yours. AP has a copyright that was violated. Fairey agrees to this by virtue of his lawsuit. If there was no violation then there was no need to file. LOL! You are so confused my friend if you actually think using a clearly copyrighted photograph is the same as voicing an opinion. Try 3 years in law school Josh. It might clear up your confusion.

    February 10, 2009 10:51 am at 10:51 am |
  18. KJL

    I'm with the AP on this one. The picture is a steal, not just art inspired by a photo. If I were the photographer I would be offended.

    February 10, 2009 10:52 am at 10:52 am |
  19. Henry Miller, Cary, NC

    AP has way too many lawyers...

    February 10, 2009 10:53 am at 10:53 am |
  20. Mariann Pepitone

    Steve: It is not a true work of art when you copy another photograph. It is a true work of art if the person is sitting for the portrait. And that he didn't do. Both the picure is copied and so is the word HOPE which Obama copied. I don't blame AP and I hope they win the case. Painting a portrait from another is copy work. Let's face it. Many artist's do that and so did he.

    February 10, 2009 10:53 am at 10:53 am |
  21. Betty

    Fairey owns the copyright to the depicted ‘image’ he painted – and – the original photographer owns the copyright to actual ‘image’ he photographed unless he sold that photo and it’s copyright to UP. If artists were sued each time they created a painting, sculpture of other work of art, they would be sued daily.

    I believe that the actual law regarding a photographic or work states that there is no infringement of the copyright unless the piece created is an actual duplicate of the original. When a certain number of changes are made to the ‘copy’ then that is no longer the case and is not considered copyright infringement.

    This painting is definitely NOT an exact copy of the original photograph. Now, on the other hand, do I believe Fairey should be suing UP; no. Carrying the complaint further is only a ploy for more attention on the part of the artist.

    Mr. Fairey, stop trying to gain more publicity by this lawsuit. Instead, take advantage of the attention you already received and use you creative abilities to paint more canvases.

    February 10, 2009 10:55 am at 10:55 am |
  22. Bridgette-PA

    AP.....WHAT DO YOU WANT? SERIOUSLY.....GET OVER IT! Take the transformation of the picture that Fairey made and transform it again for pete's sake!

    February 10, 2009 10:56 am at 10:56 am |
  23. Li Li

    I think the whole thing is pretty rediculous. But I also agree that copyright laws aplly to everyone, no matter what the case. The fact that he intently breaks the law and apparently quite often (being arrested 14 times) is way more disturbing than the infringements. Quite frankly, I wish Obma had more control over his image because there are some real sleezeballs making money off of him.

    February 10, 2009 10:57 am at 10:57 am |
  24. Watcher

    Josh, copyright is established to protect creative individuals in the event that someone tries to copy and/or distribute thier work without their permission. AP is a licenising agency which is acting on behalf of a photographer who captured what has become an iconic image. Fairey undeniably used that copyrighted image and it was his responsibility to clear his work with creators/owners of the original. I don't argue that Fairey has no rights to distribute his poster, simply that he was out of bounds not seeking the proper permissions beforehand, and now he must do this retroactively. It's as simple as that. That is not theory, it is copyright law, which protects you, me, AP and Fairey

    February 10, 2009 11:08 am at 11:08 am |
  25. Fair Use?

    Photojournalists generally don't get model releases and apparently don't need to as the photos are news and are shared with news outlets. If the photographer took this in a studio and actually posed Obama I would agree with the photographer. However this was news and Fairey re-drew and re-interpreted Obama's face. If another photographer got a very similar photo from the same angle (I'm sure that'shappened) and used it for a postcard, would there be a basis for lawsuit? I doubt it, it's just Obama's face from below and from the left.

    February 10, 2009 11:17 am at 11:17 am |
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