February 5, 2009

AP Claims Copyright On Famous Obama Portrait

A portrait of a pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE, has turned into an image of controversy.

The image was designed by Shepard Fairey, a Los-Angeles based street artist, and it has led to sales of hundreds of thousands of posters and stickers.  The demand of the portrait is so high that copies of it that have been signed by Fairey have been purchased for thousands of dollars on eBay.

However, the Associated Press claims it owns the copyright, and wants credit and compensation.  Fairey disagrees, though he has acknowledged the image is based on an AP photograph taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.

"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."

The term 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.

Fairey said he found the photograph using Google Images, and he released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street.

Once the image became a fad, supporters began downloading it and distributing it at campaign events, while blogs and other Internet sites picked it up.  Fairey said that he did not receive any of the money raised.

An Obama campaign official said they were aware that the image was based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. 

The fame of the image did not die once the election was over.

The image will be seen at a Fairey exhibit at the Institute of Contemporary Art in Boston this month and a mixed media stenciled collage version has been added to the permanent collection of the National Portrait Gallery in Washington.

"The continued use of the poster, regardless of whether it is for galleries or other distribution, is part of the discussion AP is having with Mr. Fairey's representative," Colford said.

Chelsea Green, a Vermont-based publisher, used the imaged and credited it solely to Fairey.  He used the image as the cover for Robert Kuttner's "Obama's Challenge," an economic manifesto released in September.  Margo Baldwin, Chelsea Green president, said that Fairey did not ask for money, only that the publisher make a donation to the National Endowment for the Arts.

"It's a wonderful piece of art, but I wish he had been more careful about the licensing of it," said Baldwin, who added that Chelsea Green gave $2,500 to the NEA.

Fairey also used the AP photograph for an image designed specifically for the Obama inaugural committee, which charged anywhere from $100 for a poster to $500 signed by the artist.

Fairey said the he first designed the portrait when he was encouraged by the Obama campaign to come up with some kind of artwork.  He later showed a letter to The Washington Post that came from the candidate.

"Dear Shepard," the letter reads. "I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can help change the status quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign."

Fairey said that at first, Obama's team just encouraged him to make an image.  But later, a worker involved in the campaign asked if Fairey could make an image from a photo to which the campaign had rights.

"I donated an image to them, which they used. It was the one that said "Change" underneath it. And then later on I did another one that said "Vote" underneath it, that had Obama smiling," he said in a December 2008 interview with an underground photography Web site.


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