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FAQs
The most frequently asked questions about
the Shepard Fairey' Lawsuit and The Associated Press.
1. What does the latest development in the Shepard Fairey lawsuit mean?
2. What is AP's response to these dramatic admissions?
3. How does this affect the issues surrounding Mannie Garcia, the photographer who took the Obama photos?
4.What is this lawsuit about?
5.What is AP's position on the lawsuit?
6.What does AP seek in this lawsuit?
7. Who took the Obama photograph at the center of this lawsuit?
8. Who owns the Obama photograph?
9.Why is AP asserting its ownership
of the photo used by Shepard Fairey to create the "Obama
Hope" poster?
10.Does AP authorize the use of its photos for commercial purposes?
11.How can third parties license AP content?
12.Where can I find additional information on this lawsuit
1. What does the latest development in the Shepard Fairey lawsuit mean?
The underpinnings of Fairey’s case have collapsed. Fairey has admitted that he sued The Associated Press under false pretenses by lying about the source for his Obama Hope poster and fabricating evidence.
In the lawsuit that Fairey filed against AP last February, the artist cited fair use law, claiming that he had “transformed” the image of then-Sen. Barack Obama, as seen in a 2006 AP photograph showing him seated alongside the actor George Clooney, into an “abstracted and idealized” image for his “Obama Hope” poster and other merchandise. Fairey repeated his claim in numerous media interviews, on his Web site and in public appearances.
On October 9, 2009, Fairey’s lawyers told AP “Plaintiffs no longer contend that the Clooney Photograph was used in the creation of the Obama Hope poster.” Moreover, Fairey’s lawyers no longer deny AP’s claim that another Obama photo, a closeup taken at the same event with Clooney, was copied and used as the basis for the poster without permission from AP. In addition, Fairey’s lawyers concede that the certain documents designed to support Fairey’s claim were created by the artist after he filed his suit last February and that “certain statements made to counsel for The AP in the course of meet and confer discussions that we understood to be accurate at the time now appear to have been inaccurate.”
2. What is AP's response to these dramatic admissions?
The Associated Press is outraged by these new admissions and intends to vigorously pursue its own countersuit, filed last March, alleging that Fairey willfully and blatantly violated AP copyright when he used without permission the AP photograph of Obama as the basis for his "Obama Hope" poster and for lucrative commercial merchandise. AP’s countersuit alleges: “Fairey has done nothing that would excuse his blatant copying of, and creation of derivative works based on, the Obama Photo without first obtaining a license to use that photograph from The AP.”
“As a not-for-profit news organization, the AP depends on licensing revenue to stay in business,” said AP General Counsel Srinandan Kasi. “Unauthorized exploitation directly erodes AP’s ability to support its journalistic endeavors.”
The AP also reserves the right to seek sanctions as a result of Fairey’s inexcusable abuse of the discovery process and the unnecessary financial harm the case has caused AP, as well as the damage to its reputation.
3. How does this affect the issues surrounding Mannie Garcia, the photographer who took the Obama photos?
This is a separate matter. Mannie Garcia, who took the Obama closeup photo (as well as the Obama-Clooney photo), has asserted his own copyright claim. However, the AP is confident of its ownership of the copyright because Garcia was an employee of AP when he took the photos in 2006.
4. What is this lawsuit about?
Shepard Fairey, an artist, graphic designer, merchandiser and business owner, filed a lawsuit against the AP on February 9, claiming it was permissible for Fairey and his business to use an AP photo of then- Senator Barack Obama without permission from the AP and without attribution to the photographer.
AP filed an answer to the complaint and a countersuit on March 11, 2009. A copy of it can be seen at http://www.ap.org/iprights/Answer_and_Counterclaims_of_Associated_Press.pdf
5. What is AP's position
on the lawsuit?
Mr. Fairey has acknowledged that his widely distributed and sold “Obama Hope” poster is based on an AP photo of then-Senator Barack Obama taken in April 2006 at the National Press Club in Washington. The AP owns the copyright to the photo. In its countersuit, AP alleges that Mr. Fairey and his companies have used this photo in posters and other merchandise without permission from the AP.
In its countersuit, 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.
6. What does AP seek in this lawsuit?
AP’s countersuit seeks damages, injunctive relief and a declaratory judgment stating that the photo was used without permission. Any proceeds received for past use of the AP photo will 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. You can read more about the relief fund at http://www.ap.org/relieffund/
7. Who took the Obama photograph at the center of this lawsuit?
The photograph of then-Senator Obama that is at the center of this lawsuit was taken by Mannie Garcia, a staff photographer employed by AP at the time it was taken.
8. Who owns the Obama photograph?
AP owns the photograph as it does all photographs taken by staff photographers.
9.
Why is AP asserting its ownership of the photo used by Shepard
Fairey to create the "Obama Hope" poster?
AP is a not-for-profit news cooperative. Revenue
from licensing of AP's rights to its content, across formats,
is the fundamental source of funding for AP's worldwide newsgathering
and distribution operations. When a user licenses content
from AP, it obtains permission to use AP content in a specific
way. Thousands of organizations across the world license AP
content for legitimate use in their businesses. When use is
made of AP content without authorization, it undermines AP's
ability to support its news operations, and it disadvantages
legitimate AP licensees. AP, like any other content creator,
must protect its intellectual property rights against unauthorized
exploitation.
10. Does AP authorize the use of its photos for commercial purposes
AP's images may be licensed through the AP Images licensing division. (See www.apimages.com for further details.) AP licenses its images for editorial and commercial uses. The commercial uses may be subject to clearance of third-party rights. Every year, more than a million AP images are licensed by magazines, internet sites, TV shows, book publishers, merchandisers, and others. For example, AP has licensed a copy of an AP photo of President Obama, which appears on a shopping bag.
11. How can third parties license AP content?
Permission to use AP content, including photos, stories and graphics, may be obtained at AP’s Web site, at http://www.ap.org/pages/contact/contact_perm.html.
12. Where can I find additional information on this lawsuit?
You can find additional material about this lawsuit and about AP’s intellectual property protection at www.ap.org/iprights
.
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