The artist who drew the now famous Barack Obama posters with the word “HOPE” is suing the Associated Press ahead of an expected lawsuit from them. Street artist Shepard Fairey claims his iconic images are an exception to traditional copyright rules because he only used the photograph as a reference. And to further complicate the issue, the photographer who took the picture, Mannie Garcia, is a freelancer, and according to his deal with the Associated Press he still owns the rights to the image. Yet the AP was threatening Fairey with legal action.

According to the suit, A.P. officials contacted Mr. Fairey’s studio late last month demanding payment for the use of the photo and a portion of any money he makes from it.

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia took.

The suit asks the judge to declare that Mr. Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment.

“Fairey did not do anything wrong,” said Julie A. Ahrens, associate director of the Fair Use Project and another of Mr. Fairey’s lawyers, in a statement on Monday. “He should not have to put up with misguided threats from The A.P.” Paul Colford, a spokesman for The A.P., said on Monday that the agency was “disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey’s failure to recognize the rights of photographers in their works.”

[From the New York Times]

The image really is stunning, and to say it’s now iconic is an understatement. There are websites that let you upload your own picture and then transform it in the same style as the Obama photo. You can even pick your own word. The posters made a real impact with people, even though the Obama campaign never officially endorsed them (due to worries about the copyright).

It seems the whole thing may end up being a moot point, as it sounds like original photographer/copyright holder Mannie Garcia was very impressed with Fairey’s work.

In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”

He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”

[From the New York Times]

I think the AP should just let this one go. I doubt Fairey got rich off the image, and ownership in this case is dubious at best. And it’s not like the guy was printing up their photo, smacking it on t-shirts and selling it. He based his own drawing off it. Yes it’s something a court could weed though, but I think it’s in better taste to just let it go.

Header image is the iconic Obama “Hope” image compared to the AP Photo. Thanks to The NY Times for this comparison image.