03/11/2009

AP Press Release

Associated Press defends lawsuit brought by Shepard Fairey over Obama poster

Countersuit defends AP’s intellectual property rights

NEW YORK – The Associated Press filed an answer and countersuit in the U.S. District Court for the Southern District of New York Wednesday against Shepard Fairey, Obey Giant Art, Inc., Obey Giant LLC and Studio Number One, Inc.  AP’s answer defends against the lawsuit brought by Fairey and Obey Giant Art, Inc., which sought a declaratory judgment that it was permissible for Fairey to use an AP photo of President Obama without permission from the AP, or any form of credit or compensation to the AP or attribution to the photographer.  AP’s counterclaim asserts that Fairey and his companies, “fully aware that the [AP photo] was a copyrighted image, misappropriated The AP’s rights in that image by developing a series of posters and other merchandise” based on the photo and “selling such merchandise through various distribution channels,” without providing notice, credit or compensation.

As AP’s counterclaim details, 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, president and CEO of AP. “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.”

As the 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.

The counterclaim also alleges that the posters and other merchandise “do not alter any of the distinctive characteristics that make the [AP photo] so striking — from the selection of subject matter, to the composition, to the exacting details of the photo.”  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].”

AP asserts that Fairey’s unauthorized use of its photo “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, 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.  It goes on to note that “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.”

For more information, go to www.ap.org/iprights/

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