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Stanford Law School's Fair Use Project and Durie Tangri File Lawsuit against The Associated Press on behalf of Obama Hope Artist Shepard Fairey

Publication Date: 
February 09, 2009
Source: 
Stanford Law School

STANFORD, Calif., February 9, 2009—The Fair Use Project at Stanford Law School’s Center for Internet and Society and San Francisco-based Durie Tangri Lemley Roberts & Kent LLP filed a lawsuit today against the Associated Press (AP) on behalf of Shepard Fairey and his production company Obey Giant Art, Inc. in connection with the series of iconic works Fairey created to support the candidacy of President Barack Obama.

Last week, the AP accused Fairey of infringing copyrights it says it holds in a photograph that was taken of Barack Obama by photographer Mannie Garcia at the National Press Club in 2006. The lawsuit, filed in the U.S. District Court for the Southern District of New York, seeks a declaration from the Court holding that Fairey did not infringe AP’s copyrights in creating the now-famous Obama Hope poster and other related works, as well as an injunction against further assertion of copyrights by the AP against Fairey or anyone else who displays his work.

"There should be no doubt about the legality of Fairey's work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at Stanford Law School, who is leading Fairey’s legal team. “He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable."

Shepard Fairey is a renowned visual artist whose work frequently questions and criticizes political figures and world leaders, often incorporating familiar cultural iconography. His work has gained prominence in the United States and abroad. On February 6, 2009 the Institute for Contemporary Art / Boston opened a twenty-year survey of his work. A copy of Fairey’s Obama Hope Stencil Collage has been included in that show, and a copy of the same work hangs in the Smithsonian’s National Portrait Gallery in Washington, D.C.

In January 2008, Fairey created Obama Hope with the encouragement of then presidential candidate Barack Obama’s campaign. The now ubiquitous poster features an abstracted graphic rendition of Obama gazing up and to the viewer’s right, colored in a palette of red, white and blue with the word “hope” in capital letters placed below the image of Obama. In creating Obama Hope, Fairey used a photograph of Obama as a visual reference. That photograph was taken at the National Press Club in April 2006 during a panel discussion about the humanitarian crisis in Darfur. In it, Obama is looking up and to his left at a speaker with actor George Clooney seated next to Obama. While Fairey was unsure who took the photograph when he used it, the photograph has been credited to award-winning freelance photographer Mannie Garcia.

“My goal was to express visually the qualities that drew me and so many others to Obama as a candidate,” explained Shepard Fairey. “I wanted to convey the ideals I felt he stood for, and his potential as a leader. I tried to distill those qualities with an abstracted and idealized image in the hope it would become a vehicle to inspire and convince others. I think the Obama Hope poster resonated because it did capture those qualities on some level, and provided a common social expression of them.”

Early on, Fairey explained that he had used a photograph as a visual reference in creating the illustration of Obama for the Obama Hope poster but did not identify the photograph. In the days leading up to Obama’s inauguration, there was extensive speculation about which specific photo was used. After bloggers declared it was an AP photograph taken by Mannie Garcia, the AP contacted Fairey’s production studio, asserting Fairey’s work infringed its copyrights. In later public statements, AP suggested its rights extend to other examples of Fairey’s work, including the Obama Hope Stencil Collage hanging in the National Portrait Gallery. AP also stated it would sue Fairey if he did not resolve the matter to its satisfaction.

“Artists whose work is transformative—especially a visual artist like Shepard Fairey whose work offers public critique of politicians and world leaders, past and present—should not have their artistic freedom threatened by improper use of the copyright laws,” said Mark Lemley, professor at Stanford Law School and partner at Durie Tangri Lemley Roberts & Kent LLP.

“Fairey did not do anything wrong. He should not have to put up with misguided threats from the AP,” added Julie Ahrens, associate director of the Fair Use Project.

About Shepard Fairey

Shepard Fairey is a renowned visual artist who lives and works in Los Angeles, California. Fairey’s work focuses on social and political subjects, frequently dealing in current events. His illustrations are created in a variety of media, including screen printing and stencil painting. Fairey’s work takes a variety of forms, including street art, commercial art and design, as well as fine art. His work can be seen in galleries and museums all over the world. On February 6, 2009, the Institute of Contemporary Art / Boston opened Shepard Fairey: Supply and Demand, a twenty year survey of Fairey’s work.

About the Fair Use Project

The Stanford Center for Internet and Society’s Fair Use Project (“the FUP”) was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of “fair use” in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP.

About the Center for Internet and Society

The Center for Internet and Society (http://cyberlaw.stanford.edu) is a public interest technology law and policy program at Stanford Law School directed by Professors Lawrence Lessig and Barbara van Schewick and led by Executive Director Lauren Gelman.

About Durie Tangri Lemley Roberts & Kent LLP

Durie Tangri Lemley Roberts & Kent is a San Francisco litigation firm focusing on diverse areas of complex civil litigation, including intellectual property (patent, trademark and copyright), complex contract and commercial matters, antitrust and unfair competition, class actions, appellate practice and professional liability. Durie Tangri serves clients nationally from its offices in San Francisco, California. For more information, please visit www.durietangri.com.

About Anthony Falzone

Anthony Falzone is executive director of the Fair Use Project at Stanford Law School, and lecturer in law. He is an intellectual property litigator who has represented media and technology clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. He speaks frequently on copyright and fair use issues. Prior to joining Stanford Law School, Falzone was a partner in the San Francisco office of Bingham McCutchen LLP.

About Julie Ahrens

Julie Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments. Before joining Stanford, Julie was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

About Mark Lemley

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School, the director of the Stanford Program in Law, Science and Technology, and the director of Stanford’s LLM Program in Law, Science and Technology. He teaches intellectual property, computer and Internet law, patent law, and antitrust. He is the author of six books (all but one in multiple editions) and 100 articles on these and related subjects. Lemley is also a founding partner of Durie Tangri. He litigates and counsels clients in all areas of intellectual property, antitrust, and Internet law. He has argued six federal appellate cases and numerous district court cases, and represented clients including Comcast, Genentech, Google, Grokster, Hummer Winblad, Intel, NetFlix, TiVo, and the University of Colorado Foundation in over sixty cases in nearly two decades as a lawyer.

About Stanford Law School

Stanford Law School (www.law.stanford.edu) is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

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EDITORIAL CONTACT

Judith Romero
Associate Director of Media Relations
Stanford Law School
650 723.2232
judith.romero@stanford.edu