A Fair Use Battle Intensifies

 In the legal dispute over the iconic Obama “Hope” image, the Associated Press filed a counterclaim to artist Shepard Fairey’s suit today in New York.  As defendants, the countersuit names Fairey and retailers of products that incorporate the “Hope” image.  (See, Obama Icon Takes on the Copyright Act).  Associated Press is seeking money damages and injunctive relief on claims of copyright infringement. The counterclaim alleges that Fairey’s admitted use of the AP photograph was “willful and blatant.”

 AP President and CEO, Tom Curley stated that, “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. 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.”  In a press release, AP also states that Fairey “jumped the gun and filed [his] lawsuit anticipatorily in an attempt to gain a procedural advantage.”

 AP also alleges that Fairey used the image without “notice, credit or compensation” and that Fairey’s act was the “willful practice of ignoring the property rights of others for his own commercial advancement…” The statement also implies that Fairey had the option of seeking a license to use the image, but chose not to take that action. The complaint filed by AP today includes examples of the alleged commercial activity with a photograph of a sweatshirt and other clothing items imprinted with the “Hope” image.   Download AP’s answer and counterclaim here (pdf). 

Fairey’s complaint (Shepard Fairey and Obey Giant Art, Inc., v. The Associated Press for Declaratory Judgment and Injunctive Relief; demand for Jury Trial)

 On Fair Use, from Art Untitled.com and the statutory fair use factors (17 U.S.C. § 107)

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