MANHATTAN (CN) – Artist Shepard Fairey, creator of the “Obama Hope” poster, has sued The Associated Press to head off a threatened lawsuit from the AP. Fairey acknowledges he used a 2006 AP photo as a model for his poster, hundreds of thousands of copies of which he has sold and given away.
He seeks declaratory judgment that his work constitutes fair use; he says the AP has threatened to sue him by today unless he gives it a cut.
Fairey is an established artist with a long history of political commitment and political art. He says one of his portraits hangs in the Smithsonian Institution’s National Portrait Gallery in Washington, D.C.
In his federal lawsuit, Fairey acknowledges that he used an AP photo, taken of then-Sen. Barack Obama at the National Press Club in April 2006, to create his poster. He says he sold 350 similar posters, called “Obama Progress,” for $45 apiece, through his plaintiff corporation, Obey Giant. He says he used that money to print “Obama Hope” posters, and sold about 4,000 of them for $45 apiece, and gave away 300,000 of them.
Fairey, an Obama supporter, says he continued selling his “Obama Hope” and “Obama Progress” posters for $45 even though early purchasers of “Obama Progress” were selling them for “thousands of dollars” on eBay.
Fairey says that on Jan. 30, the AP threatened to sue him for copyright infringement.
“(T)he AP’s attorney explained the AP had special technology to detect the source of the photo used to create ‘Obama Hope.’ The AP’s attorney stated that AP owned the right to the photograph Fairey used to create ‘Obama Hope,’ demanded payment for Fairey’s used of the AP photo, and stated the AP expected to be paid a portion of any money Fairey might make from his work,” Fairey’s complaint states.
He says the AP released a story about its threat on Feb. 4, under the headline, “AP alleges copyright infringement of Obama image,” and he says the AP threatened to sue him by today (Tuesday) unless he cuts a deal.
No deal, Fairey says. His artwork is fair use. He seeks declaratory judgment and attorneys fees, and he wants the AP enjoined from asserting copyright claims against third parties that might show his work, “including but not limited to the Smithsonian Institution and the Institute for Contemporary Art / Boston.” He is represented by Anthony Falzone of the Stanford Law School’s Center for Internet and Society.