AP Suing Shepard Fairey Over Derivative Image

One of our favorite derivatives of this now-iconic derivative image.

I can’t say that I’m at all surprised that the AP has decided to take legal action about Shepard Fairey‘s use of one of their images in what has now become an iconic portrait of our new president. The “Hope” image that become an overnight sensation originated as a photograph taken by a temporary photography working for the Associated Press–and they are seeking compensation and credit for the image.

Here’s a snip of the AP (har!) article about the issue:

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.

I am generally very sympathetic to taking action when it comes to people essentially ripping off others’ intellectual property. However, in this instance, my instinct is that this situation stinks, stinks, stinks. Keep in mind, that simply by posting a link to this AP article and a quote from it, there’s a decent chance that the AP will sue me. Yep, the venerable Associated Press has made a habit of suing bloggers for driving traffic to the AP’s content. The Washington Post’s tech section has a nice summary of this issue, if you want to learn more. All I have to say is, there’s a reason that many newspapers are dropping their subscriptions to the AP wires, and people in the media will tell you that it’s not just cost cutting.

While there’s no doubt that Shepard should have gotten permission to use the image, I highly doubt that he imaged it would become the phenomenon that it has, that it would end up in the National Portrait Gallery or knitted into sweaters. Nor, do I image, did he anticipate that it would be embraced by the Obama campaign itself.

It’s important to note the Shepard claims that he did not keep any money he made from this image, aside from the obvious popularization of his work.