Friday, March 29, 2024
 

The Fairey Best Counterclaims


Today, the Associated Press filed their answer, counterclaims and affirmative defenses against Shepard Fairey’s preemptive lawsuit (See the actual court document fairey.ap.cc.pdf). Wired magazine has a great expose and synthesis of the lawsuit.

Orr.image.pngTexas artist Baxter Orr who reconfigured a Fairey drawing by adding surgeon’s mask.

The nation’s oldest and largest operating news-gathering organization sought unspecific damages from Fairey, who the wire service accuses of misappropriating a 2006 AP photo of Obama when he was a senator from Illinois. Last month, Fairey filed a preemptive lawsuit seeking to have a court rule that his computerized image was a fair use of the photo snapped at National Press Club on April 27, 2006.

“Simply put, the fair use doctrine cannot be contorted to permit Fairey to wholly replicate a photographer’s prescient photograph and exploit it for his own commercial benefit,” (.pdf) the AP wrote in its New York federal counter suit. The AP claims Fairey has generated $400,000 in sales of the image, which has adorned websites, posters, stickers, shirts and buttons.

Additionally, Wired points out Fairey’s hypocrisy of claiming “free expression” for his appropriation of the AP’s photograph and his aggressive prosecution of individuals Fairey believes appropriate his work.

Either way, this isn’t good for visual artists. If Fairey loses the court decision will establish a narrower interpretation of fair use, most likely hitting on and defining the “marketability” and “commercial” factors (which may be a good thing). If Fairey wins, the decision will outline ways in which artists can appropriate images from other artists for commercial purposes without the original artist’s consent. Artist’s lacking in exposure and financial means will grab the short end of the stick. Live by the sword… . Perhaps this is a good thing; it may send artists back to their own creative boards rather than Google images and the front page of the New York Times.

 

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