In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press (AP), asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of US President Barack Obama.
The suit was filed in federal court in Manhattan after the AP said it had determined that it owned the image, which Fairey used for posters and stickers distributed grass-roots style last year during the election campaign.
The photo, showing Obama at the National Press Club in April 2006, was taken for the AP by a freelance photographer, Mannie Garcia.
According to the suit, AP officials contacted Fairey’s studio late last month demanding payment for the use of the photo and a portion of any money he makes from it.
Fairey’s lawyers, including Anthony Falzone, the executive director of the Fair Use Project and a law professor at Stanford University, contend in the suit that Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Garcia took.
The suit asks the judge to declare that Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment.
Fairey, 38, has become one of the most visible practitioners of a guerrilla-style art that has grown out of the graffiti scene but has expanded beyond paint to include a wide variety of techniques and materials, producing works usually displayed illegally on buildings and signs.
Fairey decided to create the image on his own before contacting the Obama campaign, which welcomed it but never officially adopted it because of copyright concerns.
After Obama’s victory, speculation increased about which picture had served as the basis for Fairey’s posters. In interviews the artist said that it was one he had found on the Internet. Bloggers pursued several leads until, according to the lawsuit, Tom Gralish, a Pulitzer Prize-winning photographer, helped track down a photo by Garcia that showed Obama at a 2006 event about Darfur at the National Press Club.
Further complicating the dispute, Garcia contends that he, not the AP, owns the copyright for the photo, according to his contract with the AP at the time.
On Monday, Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.
“I don’t condone people taking things, just because they can, off the Internet,” Garcia said. “But in this case I think it’s a very unique situation.”
He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”