Update: AP vs. Shepard Fairey

- - copyright

I just saw this update in the AP lawsuit against Shepard Fairey:

The judge presiding over the ongoing lawsuit between street artist Shepard Fairey and the Associated Press concerning the use of a photo of then-candidate Barack Obama told the parties they should settle and that “sooner or later” the wire service would prevail, the AP reported. But it didn’t convince the opposing sides, who appear as ready as ever to see the case through to at least the next level.

via paidContent.

There Are 4 Comments On This Article.

  1. Albert L.

    This is in many ways a landmark case. It doesn’t surprise me that designers who bank on re-contextualizing popular imagery such as Fairey wouild fight so hard…. their careers depend on it.

  2. Except in this case it is not a mere matter of “recontextualizing photography.” He admitted to deleting some images and filing fake reference images to hide the true source of the image he created, and prior to Fairey’s PREEMPTIVE lawsuit against the AP his lawyers publicly admitted that they were in $ettlement discussions with the AP.

    Doesn’t exactly sound like the actions of an artist honestly believing he was able to appropriate a photo under ‘fair use’ standards, does it.

    The AP is arguing that Fairey not only violated the Digital Millennium Copyright Act but he filed a fraudulent registration with the Copyright Office. (The latter appears to not be in doubt, given Fairey’s own admission.) The AP seeks the dismissal of Fairey’s lawsuit and damages including any profits he made from the image he appropriated.

    Speaking of art and appropriation, the words ‘irony’ and ‘hypocrite’ come to mind when you consider Fairey’s threat to sue Baxter Orr for his own parody of Fairey’s ‘HOPE’ poster — especially given that parodic use is a recognized and reputable fair use defense.

  3. Jeff Greenberg

    Much more interested in the latest on Jack Mackie vs. Mike Hipple.

  4. The common conception is that Fairey’s discovery shenanigans were tantamount to a game changer in terms of how the court will come out. But the law is pretty clear that although perjury is a big no-no but doesn’t mean much in a copyright infringement suit

    Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn’t really pertinent in fair use.

    As much as I’d like to see the court find fair use here, I don’t think it’s necessarily open-and-shut fair use on its face because of the effect on the market factor.