Exhausted, Photographer Drops Out of Fairey-AP Lawsuit

August 21st, 2010 by Sergio Muñoz Sarmiento

In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP’s photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits. — From Paul Colford, AP Director of Media Relations

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Posted in Copyright, Employment, Litigation | 4 comments

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  1. S. Tschantz:

    August 21st, 2010 at 2:36 pm

    It really is too bad that the copier wins by default. That artists cannot protect their art and the right to profit from it.

    While I understand why the photographer dropped out, it is a shame that he did. This is a defacto win for the bad guys.

  2. Sergio Muñoz Sarmiento:

    August 21st, 2010 at 3:31 pm

    S,
    Not so fast. The lawsuit is still ongoing. You may recall the Garcia was the photographer that took that photo Fairey used for his Hope poster. At first Garcia disclaimed copyright ownership over the photo, but then changed his mind and sued the AP claiming he, not the AP, owned the copyright.

    The lawsuit is still ongoing between the AP and Shepard Fairey though, so you may still “win.” Stay tuned!

  3. P. Hirtle:

    August 22nd, 2010 at 10:23 am

    I am sorry to learn that once again it seems that a corporate interest (AP) can run roughshod over the rights of an artist (Garcia). Fairey’s use of the photo has undoubtedly raised Garcia’s profile and has probably led to increased work (and fees) for him, but that seems like a small compensation for the loss to AP of the copyright in his work – a loss that apparently came about not because of employment agreements or written transfer but simply because AP has bigger lawyers. Fortunately Fairey may end up defending Garcia’s rights. The strongest argument Fairey has is that the copyright belongs to Garcia, not AP, and so AP has no standing to sue for infringement.

  4. Sergio Muñoz Sarmiento:

    August 23rd, 2010 at 4:13 pm

    Hi Peter,
    Thanks for your comments. I know we disagree on the Fairey vs. AP fiasco, and although I do agree with your thoughts on Garcia, I would place more blame on Fairey for not going about this in a better and more business-savy manner. My understanding is that he was offered a licensing deal by the AP when this started, and he turned it down. Now, for his selfish ways, he faces not only criminal charges but the potential to lose this very-important fair use case.

    Additionally, we do not know what happened between the AP and Garcia. For all we know, Garcia may have been compensated, or better yet, Garcia’s lawyers may have informed him that proving he was the rightful copyright owner would have been an uphill and losing battle.

    -sms