A federal judge has opted to send the Associated Press' copyright infringement claims over T-shirts that feature an iconic image of President Barack Obama to a jury, while nixing the shirt seller's fair use defense.
Judge Alvin K. Hellerstein ruled on summary judgment motions during a hearing Tuesday in the U.S. District Court for the Southern District of New York, finding it appropriate to test key issues in the case — over T-shirt company One 3 Two Inc.'s use of artist Shepard Fairey's "Hope" illustration — at a trial scheduled for March 21.
Jurors will be asked to consider whether the "Hope" image is similar enough to an AP news photograph to constitute copyright infringement. The judge also left it up to a jury to decide whether the company, operating under the name Obey Clothing, violated the Digital Millennium Copyright Act.
Obey lost out on its fair use defense, however, with the judge determining that the common weapon against copyright infringement claims does not apply in this case.
"This was exploitation of an image," Judge Hellerstein told lawyers for the clothing company. "If the image is infringed, you're out of luck. It's not fair use."
A lawyer for the news agency, Dale Cendali of Kirkland & Ellis LLP, argued that the situation at issue "is a simple case of direct copying."
"Obey Clothing does not dispute that the AP has a valid copyright to the Obama photo," she said.
The "Hope" image counts as infringing if an ordinary person would call it it substantially similar to the original photograph, she argued.
Meanwhile, a lawyer for Obey Clothing, Robyn Crowther of Caldwell Leslie & Proctor PC, contended that Fairey had made sufficient changes in crafting his version of the image to escape copyright claims.
"Photographs have thin protection against verbatim copying," she said.
The AP has also alleged copyright infringement claims against Fairey, but the artist has settled those allegations. The case has continued against the T-shirt seller and the artist's company, Obey Giant Art Inc.
The illustration, which was seen throughout the 2008 election season, shows Obama in red, white and blue, gazing upward, with the word "Hope" underneath.
Fairey filed suit in February 2009 seeking declaratory judgment regarding his use of an Obama photograph as the basis for the illustration.
In its motion for summary judgment, Obey Clothing claimed the AP was no longer trying to protect its copyright and suggested that the media outlet was simply looking for an entity wealthy enough to cough up a piece of the profits made off the illustration.
"What once was a principled dispute between parties claiming to hold various copyrights is now litigation driven by the amount of money one of them believes it can get from a clothing company it views as a deep pocket," Obey Clothing said.
The AP countered that Obey Clothing could not try to cast itself as an innocent bystander, saying the company openly acknowledged the possibility of a lawsuit before it decided to sell T-shirts bearing the Obama image.
But Obey Clothing and Fairey argued that they can offer a fair use defense to the AP's claims.
Obey Clothing said in its filing that the "Hope" image was "the kind of campaign speech at the core of the First Amendment."
One 3 Two is represented by Caldwell Leslie & Proctor PC. Fairey and Obey Giant are represented by Jones Day.
The AP is represented by Kirkland & Ellis LLP.
The case is Fairey et al. v. The Associated Press, case number 1:09-cv-01123, in the U.S. District Court for the Southern District of New York.
REPRINTED WITH PERMISSION FROM THE FEBRUARY 15, 2011 EDITION OF LAW360 © 2011 PORTFOLIO MEDIA INC. ALL RIGHTS RESERVED. FURTHER DUPLICATION WITHOUT PERMISSION IS PROHIBITED