Shepard Fairey’s legal team has stated that Fairey did not violate copyright law because the posters “dramatically changed the nature of the image”. However, legal experts outside of the case have suggested that Fairey was not in the right. For example, Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, has stated that though the photograph is “transformed” to a “sizable extent” the owner of the photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.
Jane Ginsburg, a law professor at Columbia University who specializes in copyright cases, has stated, "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,". Ginsburg does not think that Fairey has a valid fair-use claim and has stated that he should have at least credited the AP.
Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion of the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”
Shepard Fairey’s lawsuit against the Associated Press was filed in U.S. District Court in Manhattan. Fairey’s legal team acknowledges that the artist used the photograph. However, they have stated that the artist transformed the “literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message.". Concerning the reason for his lawsuit against the AP Shepard Fairey has stated, "It's a suppression of an artist's freedom of expression.". However, the AP believes it is “crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others,".
The AP has stated that they are owed credit and compensation for the artist's rendition of the picture. The photograph was taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington. The AP has stated that any settlement would be placed in a charitable fund that would benefit AP journalists worldwide who suffer personal loss from conflicts and natural disasters.
Shepard Fairey’s lawsuit against the AP was filed on the same day that the artist appeared in two different Boston courtrooms after having been arrested for vandalizing private and public property with graffiti-- as well as an outstanding warrant from 2000. Fairey pleaded not guilty. Of the charges Fairey has stated, "I'd love to be able to feel like the culture of Boston continues to encourage freedom of expression. If that's not going to be the case, I'll deal with that."
Some individuals feel that Shepard Fairey is revealing his true colors due to the stress of the Associated Press copyright infringement allegations. After all, Fairey often says that people should “question everything”, but questions about various copyright allegations against him were taken off the table at a recent Q&A session. Reports state that during the session the audience was not allowed to ask questions and that the questions asked by a curator were “soft”. Thus, it has been suggested that Fairey is a hypocrite. After all, he settled out of court with the estate of Rene Mederos in 2007 after willfully infringing on a copyright protected poster by Mederos. A poster that Rene Mederos created in 1972.
Shepard Fairey infringed on the copyright of the Rene Mederos estate in 2007. He copied the poster from a book and made a few changes. Fairey titled the image 'Cuban Rider'. Fairey acknowledged the copyright infringement and settled out of court with the Rene Mederos estate. He later suggested in an inteview with Mother Jones that he thought it was acceptable to use the image because Mederos was from Cuba.
That said, some individuals have suggested that Shepard Fairey is only interested in “fair use” when he is the one utilizing it-- or if high profit is involved. Regardless of how the AP situation turns out the damage has already been done. In other words, the artist who says that people should “question everything” is being questioned about his ethics-- when will he answer?
Links of Interest:
Calif. artist sues AP over image of Obama by Larry Neumunster -- Associated Press