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Got Soap? In New Round of Filings in Obama Poster Case, AP and Artist Trade Accusations of 'Unclean Hands'

20 April 2009

The copyright spat between The Associated Press and street artist Shepard Fairey has ratcheted up a couple notches since the Litigation Daily last wrote about the case. As we reported in February, Fairey's lawyers sued in Manhattan federal district court, seeking a declaration that the artist hadn't violated copyright law when he used an image shot by an AP photographer to create his iconic (and ubiquitous) Barack Obama "Hope" image. Former Bingham McCutchen partner Anthony Falzone, now of Stanford Law School's Fair Use Project, and a team from Durie Tangri Lemley Roberts & Kent represent Fairey in the suit.

In March, the AP's lawyers, led by Kirkland & Ellis partner Dale Cendali (a recent lateral from O'Melveny & Myers), filed a 55-page answer and countersuit that basically accused Fairey of rank hypocrisy. The AP claims that the artist has shown a "willful practice and pattern of ignoring other's rights" at the same time he and his company "routinely police and enforce Fairey's intellectual property rights."

The complaint describes an instance in which a lawyer for Fairey sent a cease-and-desist letter to someone allegedly infringing one of Fairey's copyrights. In it, the lawyer insisted that the letter itself was protected by copyright and could not be published on the Internet. "As this letter demonstrates," the AP's lawyers wrote, "Fairey is hardly a champion of the First Amendment." In fact, the AP insists, Fairey's unclean hands offer a compelling reason why he should have taken a license from the news organization for use of the original Obama image. The AP contends his infringement was willful, and is demanding treble damages and attorneys' fees.

Last week, Fairey's lawyers filed their answer--and they're throwing the AP's 'unclean hands' charge right back at the news organization. Fairey's lawyers point out that the AP's image database includes photographs of works by artists Jeff Koons, George Segal, Kerry James Marshall, and Keith Haring (among others), but the AP received no license from any of those artists to sell images of their work.

And in a cheeky maneuver, Fairey's lawyers claim that the AP did not obtain a license to use Fairey's "Hope" image, which shows up in a number of pictures in the AP image database. (Kind of makes your head spin a little, right?)

Last Thursday the AP put out a statement in response to Fairey's latest allegations. "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," it said. "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."

Fairey's lawyer Falzone, in turn, offered a retort to the AP on his blog. "The funny part about this is Fairey doesn't allege the AP's photos are illegal or infringing, much less 'attack' the AP," Falzone wrote. "The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive, and defensible way."

With each side openly using the word "hypocritical" to describe the other, the Litigation Daily isn't expecting an amicable settlement any time soon.

Dale Cendali, P.C.

Practices