Intellectual Property

AP Says it Owns Copyright to Street Artist’s Obama HOPE Image

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The Associated Press maintains it owns the copyright to an image of Barack Obama on a hot-selling poster created by a street artist.

But it was the artist, Shepard Fairey, who was first to file a lawsuit, according to Stanford News Service. He is represented in the declaratory judgment action by Stanford law school’s Fair Use Project and the San Francisco law firm Durie Tangri Lemley Roberts & Kent.

Fairey’s poster portrays “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,” the the Associated Press reports.

Fairey maintains the image is protected by the doctrine of fair use. Legal experts who spoke to AP disagreed on whether the theory should succeed in Fairey’s case.

Robin Gross, an intellectual property attorney who heads IP Justice, cited two factors supporting the fair use claim, the AP story says. The first: Fairey used the photo for a political or civic purpose. The second: The poster has likely increased rather than decreased the value of the original photo.

But Columbia University law professor Jane Ginsburg wasn’t as sure that the fair use claim is justified. “What makes me uneasy is that it kind of suggests that anybody’s photograph is fair game, even if it uses the entire image, and it remains recognizable, and it’s not just used in a collage,” she told AP. “I think that’s pretty radical.”

Last updated on Feb. 17.

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