Judge in New York Drops Claims in Shepard Fairey vs. Associated Press Obama ‘HOPE’ Lawsuit

NEW YORK (AP).- A judge has dismissed copyright lawsuits between an artist who created the Barack Obama “HOPE” image and The Associated Press but has left a March trial date in place for related claims between the news service and companies that sold merchandise using the artist’s image.

U.S. District Judge Alvin Hellerstein said in a one-page order publicly filed Tuesday that a “suggestion of settlement” led him to dismiss claims between artist Shepard Fairey and the AP. He said the claims could be reinstated within a month if either side requested it.

The judge said other claims between the AP and Fairey-related companies that manufactured or marketed products based on the image will be put before an eight-person civil jury on March 21. Lawyers on all sides did not immediately return messages seeking comment Tuesday.

The dispute stems from an AP picture taken in 2006 when Obama, then a U.S. senator from Illinois, was at the National Press Club in Washington.

Fairey used the photograph when he created his artwork during Obama’s 2008 run for the presidency. In 2009, he sued the AP, seeking a court declaration that he did not violate AP’s copyrights when he made the Obama image.

The news cooperative countersued, saying the uncredited, uncompensated use of its picture violated copyright laws and was a threat to journalism.

Last year, it was disclosed in court that Fairey was under criminal investigation after he said he erred about which AP photo he used as a basis for “HOPE.” He also had acknowledged that he had submitted false images and deleted other images to conceal his actions.

The red, cream and light-blue images show a determined-looking Obama gazing upward, with the caption “HOPE.”

It was unclear how a dismissal of claims between Fairey and the AP would affect legal fair use arguments over whether Fairey altered the original image of Obama enough that he did not infringe the AP’s copyrights.

Court papers submitted by lawyers for the AP and makers and distributors of apparel and other merchandise using Fairey’s image suggest that those arguments to some extent will remain part of the case.

Lawyers for clothing manufacturer One 3 Two said in court papers that the “total concept and feel” of the AP picture and the Obama image were different. They said that while the AP picture “depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey’s street art.”

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey’s images as it sold apparel and other merchandise using the art.

In papers filed last week, the AP said the case presents “the straightforward question of whether a T-shirt company may use a nearly verbatim copy of a copyrighted image to generate millions in dollars of revenues for itself without securing the permission of the copyright owner.” The company called the legal issues “garden-variety copyright infringement matters.”

The AP said the T-shirt company, Obey Clothing, between March 2008 and September 2009 sold approximately 233,800 pieces of merchandise bearing an image that copied the Obama photo.

The AP wrote that Fairey’s image was a “nearly verbatim copy” of the Obama AP photo, incorporating the “protectable expressive elements in the photo almost entirely — down to the twinkles in then-Senator Obama’s eyes.”