Legal Updates

Intellectual Property – Copyright in Photographs – Copyright Infringement - Obama

A number of retailers are subject to lawsuits in the US by global news network, The Associated Press, for the alleged unauthorised use of an image featuring President Obama (known as the Hope image), which was created by artist Shepard Fairey.  Amongst the retailers are Urban Outfitters, Nordstrom and Zumiez which are all being sued for unspecified damages.

Associated Press asserts that Fairey used its photograph, without its consent, to create the Hope image, which is now exhibited in the National Portrait Gallery in Washington.  Associated Press initially sued Fairey, and the parties reached a settlement.

The retailers in question have been accused by Associated Press of copyright infringement in the photograph by virtue of their use of the Hope image (created directly from the photograph) on t-shirts without its consent, and went further to assert that commercial use of photographs taken by journalists without consent or payment, devalued the journalists’ work.  Associated Press went on to state that use of their images without credit and/or compensation “undermines the Associated Press’ ability to cover the news”.

The photograph which has become the centre of this dispute was taken by an Associated Press photographer in 2006.  Fairey used this to create his Hope image during Barack Obama’s presidential campaign in 2008, and when Associated Press challenged him, Fairey sought a declaration that he was not infringing any rights in the photograph with his Hope image.  Associated Press counter-sued, asserting he had created the Hope image, based directly on Associated Press’ photograph, without any credit or compensation.  A settlement was eventually reached which involved revenue sharing from exploitation of the Hope image, and also Fairey’s agreement to obtain licenses for subsequent use of any Associated Press images.

This is an important case for individuals and businesses producing merchandise and similar products with artwork based on copyright protected photographs.  Associated Press’ action against the third party retailers continues.

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© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.