Attorneys for the recently-legally-beleaguered artist Shepard Fairey have filed a countersuit against the Associated Press over claims Fairey violated intellectual property rights in creating the iconic Obama poster. Fairey and his supporters argue that his work falls squarely within the boundaries of transformation and fair use. PDFs of the counterclaim documents below, at the bottom of this blog post.
The source close to Fairey's legal affairs who passed these directs our attention to a section which, in their words, "illustrates the hypocrisy of the AP." This section documents a number of instances in which Shepard's defense argues the AP has published — and profited from — Fairey's work, and that of other artists, without obtaining a license.
# On January 7, 2009 The AP distributed a story entitled "Iconic Obama portrait headed to Smithsonian museum" by Brett Zongker. The AP's article included a photograph attributed to The AP, which depicted Fairey's Obama Hope Stencil Collage that now hangs in the National Portrait Gallery of the Smithsonian Institution. (A copy of the full article is attached as Exhibit A.) The AP did not obtain a license to use Fairey's work in this photograph. As shown below, the photograph attributed to The AP consists of nothing more than a literal reproduction of Fairey's work.
# The AP's image database contains the following photograph of Jeff Koons' sculpture entitled Ushering In Banality. On information and belief, The AP did not obtain a license to use Koons' work in this photograph.
# The AP's image database contains the following photograph of George Segal's The Diner. On information and belief, The AP did not obtain a license to use Segal's work in this photograph.
# The AP's image database contains the following photograph of Banksy's Di-Faced Notes. On information and belief, The AP did not obtain a license to use Banksy's work in this photograph.
# The AP's image database contains the following photograph of Keith Haring's Hope. On information and belief, The AP did not obtain a license to use Haring's work in this photograph.
(…) # The doctrine of unclean hands and basic principles of equity prohibit The AP from contending that Counterclaim Defendants' Obama Works infringe The AP's copyrights when The AP itself exploits the copyrighted work of Fairey and other artists without permission and in a manner that is far less transformative than the Obama Works, as illustrated but not limited to, the photographs listed above.
SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs, -against- THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff, -against- SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE, INC.
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Update: A statement from the Associated Press follows, after the jump.
Paul Colford, Director of Media Relations for The Associated Press, emailed this statement to Boing Boing:
Statement from The Associated Press:
The Associated Press is still in the process of reviewing Mr. Fairey's response to its Counterclaims, but it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP's copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities. Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used. We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP's Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works.