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Obama 'HOPE' artist and AP settle copyright claims

By Larry Neumeister
Associated Press / January 12, 2011

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NEW YORK—The Associated Press and the artist who created the Barack Obama "HOPE" image announced Wednesday they have agreed to settle their copyright infringement claims against each other and will work together again in projects that use the news agency's pictures.

Both sides disclosed the agreement in a joint release, ending a fight that began after Shepard Fairey's art based on a 2006 AP photograph became an iconic image in Obama's presidential campaign. The red, cream and light-blue image shows a determined-looking Obama gazing upward, with the caption "HOPE."

Fairey sued the AP in 2009, seeking a court declaration that he did not violate AP's copyrights with the Obama image. The AP countersued, saying he did through his uncredited, uncompensated use of its picture.

Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative, and the two sides agreed to share the profits of posters and merchandise bearing the "HOPE" image. The two sides also reached a financial settlement; terms weren't disclosed.

Neither side surrenders its view of the legal issues surrounding the dispute, the release said.

"AP will continue to celebrate the outstanding work of its award-winning photographers and use revenue from the licensing of those photos to support its mission as the essential provider of news and photography from around the world," said Tom Curley, the AP's president and CEO.

"The AP will continue to vigilantly protect its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use," he said.

Fairey and the AP have agreed to collaborate on a series of images that Fairey will create based on AP photographs.

"I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images," Fairey said in a statement. "I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP's talented photographers."

The deal also settled claims brought against several companies involved in producing and marketing merchandise related to the Obama image. However, the AP's copyright infringement lawsuit against Obey Clothing, the marketer of apparel with the Obama image, remained set for a March trial.

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

The copyright fight carried added significance in the news industry because it threatened the AP's ability to share in revenue produced through the use of its photographs. The not-for-profit organization said in court papers that it uses revenues from its image-licensing business to help fund its newsgathering and reporting operations.

Fairey found himself on the defensive after it was disclosed in court last year that he was under criminal investigation following his admission that he erred about which AP photo he used as a basis for "HOPE." He acknowledged that he had submitted false images and deleted other images to conceal his actions.

Fairey and companies that mass-produced his Obama image argued that he had altered the original photo image enough that the AP did not have to compensated for the use of its photograph.

"The AP is essentially trying to copyright the face of Barack Obama," lawyers wrote in court papers last week.

Apparel manufacturer One 3 Two, which settled its lawsuit, said in court papers it did not want to profit from Obama's candidacy or create an appearance of seeking to do so. But it began manufacturing T-shirts based on the image after competitors began to do so and after one of its largest customers, retail store Urban Outfitters, requested T-shirts. It said it donated a portion of its proceeds to the Obama campaign.

In papers filed last week, the AP directed arguments at the remaining defendant, Obey Clothing, saying 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."

A message for comment left with a lawyer for Obey Clothing was not immediately returned Wednesday.