A Novel Defense

As promised, we have continued to follow the fascinating case of Fairey et al. v. The Associated Press.

As reported in two of our previous blogs, Goliath Slays David and The Music Goes On, Mr. Fairey is engaged in a struggle with The Associated Press over copyright to the “Obama Hope” image. Mr. Fairey initiated what is proving to be an ill-advised declaratory judgment action against the AP seeking a judgment that the said image doesn’t infringe any AP copyright. The AP responded with a claim of copyright infringement against Mr. Fairey, his clothing company – Obey Clothing – and the distributor of the Obama Hope t-shirts.

Mr. Fairey, who has admitted copying an AP photograph as the basis of the Hope image, has settled the claims against him personally. His clothing company, which produces t-shirts, and the t-shirt distributor soldier on. They recently moved for summary judgment, on the grounds that they had merely made a “fair use” of the copyrighted AP photograph. The trial court judge did not buy this argument, holding that, “[t]his was exploitation of an image. If the image is infringed, you’re out of luck. It’s not fair use.”

With their “fair use” defense gone, the remaining defendants are now arguing that the Hope image is simply not an infringement of the AP copyright. The attorney for the clothing company contends that Fairey made sufficient changes to the AP photograph to avoid infringement. “Photographs have thin protection against verbatim copying.” In a novel move, the clothing company is also asserting a constitutional argument in its defense, arguing that the subject image is “the kind of campaign speech at the core of the First Amendment.” Yep, they’re pushing a freedom of speech defense. We can’t wait to see how this turns out.