A controversy -- and back and forth lawsuits -- ensued when the AP began claiming that Fairey had violated their copyright by utilizing a portion of a photo AP took of Barack with fellow Men's Vogue Cover Boy and Box Office Poison George The Looney Clooney.
Fairey's explained his position and it includes:
No disrespect was intended to photographer Mannie Garcia, but I did not think (and do not think) I needed permission to make an art piece using a reference photo. From the beginning, I openly acknowledged that my illustration of Obama was based on a reference photograph. But the photograph is just a starting point. The illustration transforms it aesthetically in its stylization and idealization, and the poster has an altogether different purpose than the photograph does.
That's really all Fairey needs to state but he throws in other things that neither help his case or anyone else. For example, Mannie Garcia's opinion isn't relevant. Garcia is not suing him. Garcia does not not own his photo, AP does. Fairey countersued and he posted the following to his website on that:
My lawyers filed my response to The AP's claims against me on Tuesday (CLICK HERE FOR SHEPARD’S RESPONSE). It includes a dozen examples of AP photographs that consist almost entirely of copyrighted artwork from me and other artists. Today, The AP issued a statement accusing me of "making attacks" on them. I don't feel the need to respond to that in detail, because my lawyer already has (CLICK HERE FOR LAWYER’S RESPONSE).
As I have stated before I am fighting the AP to protect the rights of all artists but I do want to emphasize one other important point. I'm not accusing the AP of infringing anybody's rights. I'm saying everyone should have the same broad rights of fair use and free expression, and that includes The AP. I'm not questioning The AP's legal right to do what it does. But I am saying they have to be consistent. They can't have it both ways. If AP photographs that do nothing but depict other artists' work are protected by fair use, then my work has to be, too, because it's at least as transformative, creative and expressive as The AP photos we identify in my response, if not much more so. If the AP has the right to do what it's done, then so do I.
Art is art. It's not to be determined by Associated Press or any other news outlet. They can evaluate it, they can critique it, but they are not the ones who determine whether or not something is art. (In the end, history determines what is art.)
We make that point because Shepard Fairey and his attorneys seem to struggle with how to present their case repeatedly. For the record, Fairey's poster does not 'inspire' us. We wouldn't hang it. Nor did any of us vote for Barack (all but Ava and C.I. are on the record as voting for Ralph Nader -- Ava and C.I. have said they voted for Nader or Cynthia McKinney and, other than that, they're not saying). So our defense of him is not based on either being a fan of his art or on being a fan of his political beliefs.
Our defense is based upon art and upon AP practices.
What Shepard Fairey did was re-interpret an image. That is art. Art is all about the artist re-interpreting. Fairey did not reproduce a photo. He re-interpreted it, he re-configured it and, in the end, he came up with a visual that was striking and that was much used. By publications, by other candidates. His art work was more used than the photo that was an original inspiration.
That's what art can do and that's because what Fairey did was change the focal point, emphasize certain aspects and add colors that were not obvious choices. (The same colors predominate in a great deal of Fairey's work. The famous poster took his the palette he works with and exposed it to the world.)
On the basis of what art is, Fairey's on strong ground and should honestly make the case about that.
There's another issue involved, however. Fairey comes close to it noting that when AP photographs his or any other visual artists' work they put a copyright notice on that. How, he wonders, can they do that and refuse to allow him to use one of their photos as a source to create from?
That's a question which could lead to an endless debate.
But one thing became clear this month, how AP abuses copyright law.
Recognize the photo? You may know it (a darker version of it) as something AP copyrighted. They aren't the only ones. Getty Images claims to hold a copyright as well. How can two outlets hold the copyright to the same image? They can't.
And neither truly do.
The image above you can use freely. That's because it's not AP's copy or any other news outlet's copy. It's a copy C.I. picked up at the Mecklenburg Sheriff's Dept. The photo is Steven D. Green's mugshot. AP did not take this photo. Getty Images did not take this photo. The government took this photo and the government will release a copy to anyone who asks for it.
AP thinks they can stamp a copyright on works they did not produce, on works that the tax payers paid for. AP, which wants to sue Shepard Fairey for using one of their photos as a source of inspiration for a piece of art, also wants to claim that by receiving a copy of a public domain photo from the government, they can stamp "copyright AP" on it and refuse to allow anyone to use the photo without their permission.
Steven D. Green gang-raped and murdered 14-year-old Iraqi Abeer Qassim Hamza al-Janabi and in the federal trial which ended this month, the prosecution -- that would be "the state," presented a photo as evidence. It is a photo of Abeer as a young child. Abeer was not a child model. No AP photographer set up a shoot with her and no AP photographer photographed her. Yet, if you click here, you will see the photo which is public domain (it became that when it became part of the prosecution's exhibit) and you will see see AP has stamped their brand on it.
AP has long abused copyright law and continues to do so. There is no big whiner than AP. They whine that their text is being used wrongly. And they attack blogs for that. They never attack, for example, KPFA whose 'news' breaks and, yes, evening news, is often nothing more than reading AP word for word without ever crediting it to AP. AP cares some times and some times it doesn't. An inconsistent stand like that should result in the courts tossing out AP's claims against Fairey -- claims which, on the face of it, do not merit a hearing because AP is not the judge of what constitutes art or what doesn't.
Fairey came across an AP photo and a portion of it inspired him, a portion of it led to his creating a poster because it gave him an image in his head worth sharing with the world. AP claims public domain photos as their own and, when pressed, they'll say the photos need to be seen. It shouldn't matter in the context of the case, but it does bear noting, Shephard Fairey didn't profit from the poster but AP profits from illegally slapping copyrights on public domain photos.
It also doesn't matter in terms of the legal issues, but it's still worth noting that posters were created for Hillary's campaign using similar colors and very close to Fairey's poster. Fairey did not support Hillary Clinton. But that didn't lead him to sue another artist, even one who was heavily borrowing from him, for trademark infringement. Should AP win the lawsuit, will they next go after the artist of the Hillary poster claiming that they also have a right to that poster as well?