Update: AP announced in a statement Wednesday morning that the two sides have settled. Who gets what? After the jump. (Shepard speaks, too).

In a strange sign of the times, the image that epitomized much of America's desire to put the Bush years behind us, L.A. artist Shepard Fairey's iconic “Hope” poster, became a centerpiece for increasingly intrusive claims over intellectual property.

In this chapter, it looks like Fairey won (for now).

Copyright lawsuits brought on both sides of the case in spring were dismissed by a U.S. District Court judge in New York late Tuesday. But …

… civil claims involving the making, marketing and, most importantly, selling of “Hope” merchandise based on the AP's original image of Barack Obama shot by photographer Mannie Garcia can go forward.

Shepard Fairey.

Shepard Fairey.

In other words, while the two sides can stop fighting over who owns the actual image, there's still an issue of who should get paid: That issue will go before civil jurors in March.

However, the judge said either side (Fairey or AP) could also reinstate its copyright and fair use claims in a month. So it's not over yet.

In dismissing the claims, the court cited a possible “settlement” between the parties.

Last May the same judge, Alvin Hellerstein, urged Fairey to give in, saying the AP would likely win.

Nearly a year ago Fairey was dunked in hot water after he admitted he lied about where he got the inspiration for the photo: He had denied he used the Garcia picture as a basis for the work.

Fairey has argued that AP, in shooting images on the street and elsewhere, appropriates copyrighted material all the time, and that his own use of the organization's photo was transformative.

Of course, that kind of argument doesn't fly in the world of music and film, where images and sounds are so closely guarded that even a three-note sample would constitute copyright infringement.

The corporate take over of art for its own means (AP is a nonprofit cooperative with a membership that includes some of the largest media companies in the world) is antithetical to the aims of America's original copyright laws, which sought to encourage learning and sharing.

According to the recent book Common as Air, Western copyright law was meant to enrich the common intellect without discouraging authors, artists and musicians from creating and enriching their own wallets.

The rules were meant to give creators very limited control. They were never meant, at least by this country's founders, to enrich private profiteers at the cost of public education and enjoyment.

It's a little ironic that an image that has so aptly represented a contemporary America, victorious in proving that is principals of equality and opportunity could be manifest in its highest office, has also represented its modern greed.

Update: AP sent out a release shortly before 8 a.m. announcing both sides have reached a settlement agreement “in principal.”

As part of the deal both parties will share any income derived from the “Hope” imagery and Fairey agrees not to use any further AP photos for his art.

The settlement also means that neither side “surrenders its view of the law,” according to the statement.


“I am pleased to have resolved the dispute with the Associated Press. 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. I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP's talented photographers.”

First posted at 6:04 a.m.

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