Fairey Vs. Associated Press — Intellectual Property

In Mass Communication on November 11, 2009 at 6:33 am

Intellectual property is anything that result from intellectual activities, such as artistic creations, literature, scientific discoveries, and inventions. There are laws granting the owners time-limited rights to the use of his/her creation, protecting the owners (individual or business) from unlawful use of their creation by other parties and also to allow other parties to make use of such creation in certain manners. These laws do not protect the physical products themselves, but the intellectual portion of the creation.

The Fairey/Associated Press case centers around the agrument about Fairey referencing an AP photograph, taken by photographer Mannie Garcia, and produces his iconic “HOPE” poster and associated merchandise. In February this year, the Associated Press claimed that poster artist Shepard Fairey violated copyright laws by using one of the photographs by Garcia, created his poster art and maintained all the quintessential details of the image, and, the AP is, therefore, entitled to licensing fees and damages. In response, Fairey filed a lawsuit against the Associated Press and argued that his transformation of the art is protected until the fair use provision of the copyright laws. He also pointed out that he referenced a different image from the one that the AP claimed that he used.

Mannie Garcia claimed that he owns the rights to the image in discussion because he was never an AP employee. Instead, he’s a freelance photographer and he never signed the rights of his images to the AP. So, early July, he filed a motion to be admitted to be part of the defendents, siding with the AP against Fairey.

To further complicate this case, on October 16, Fairey admitted to the public that his initial claim of using a different AP image was false. He also admitted that, in order to conceal his mistake, he submitted different images to the court and destroyed some other ones. While the Associated Press reported that Fairey’s attorneys have withdrawn from the lawsuit, Anthony Falzone, one of Fairey’s attorneys denied it. Falzone said that they still believe strongly that the main issues are fair use and free expression, and they believe Fairey will win on both grounds. However, yesterday, Fairey successfully obtained permission from the court to switch his legal team, despite opposition from the Associated Press.

After researching several sources regarding the fair use doctrine, I found myself as confused as I was before the study. Perhaps it is because of all the legal jargons that I cannot understand; or perhaps the law is just so ambiguous that the court has to decide on a case by case basis, but here’s how I feel: According to copyright laws, reproduction of copyrighted materials may be considered fair if it’s used as “criticism, comment, news reporting, teaching, scholarship, and research.” In the case of Fairey vs. the Associated Press, Fairey’s posters and other related merchandise do not fall under any of these categories. If Fairey was to “reference” the said image for his own enjoyment in creating his art, I feel that it can be considered fair use. However, if he chose the image knowing that the resulting work will be used for commerce, it would have been necessary for him to obtain proper permission prior to using it in order to, if nothing else, cover his own basis.

These days, just about everything published is copyrighted. This is to protect the creators so other people cannot freely use or reproduce their hard work. At the same time, all artists get their inspirations from other people or their surroundings, but this doesn’t mean that we can assume it is appropriate to use someone else’s work. While the case is still going on and we have yet to find out how the court is going to rule in this legal battle, we should all keep this in mind when “referencing” other people’s creations. Or, better yet, create our own originals.

I used to work for a small design firm. Toward the end of my tenure there, we were to design a catalog for a new client. During our initial meeting, our client brought us their company and product information along with a competitor’s catalog for referencing. This catalog was formatting in a creative way that was unlike any other that we’d seen. My boss / creative director decided to copy the exact format of the competitor’s catalog and replace the information with our client’s. I remember feeling odd at the time but did not question but followed his directions. As soon as the catalog was printed and distributed, our client received a letter from the competitor, stating the violation of copyright laws and requested a cease-and-desist. I contacted my boss, my production director as well as our printer and they all decided to ignore the matter. Nothing happened between then and the time when I left the company, and I didn’t hear anything about it afterwards. I hope our client was able to resolve the issue with their peers without any legal trouble.











  1. Hi, Sylvia. It is a very complicated case as you mentioned. When I read your blog, I was also confused why Mannie Garcia would be on AP`s side on this issue. Looks like he was the real victim in this case and I think Fairey should have looked carefully to see if there was a “copy rigth” stamp on AP`s poster.

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