Why Protect? The Associated Press vs. Frank Shephard Fairey

By Christian Nava | 30-Nov-2019

The most common option to protect designs to exploit them for industrial or commercial purposes is through the registration of trademarks, which allows the assurance of exclusive exploitations rights in favor of the holder of these distinctive signs.

However, another very convenient option to enforce the protection of such designs is through Copyright; which allows a broad range of options for its application, and (depending on the country concerned and if it is a State party of the Berne Convention) its scope is not limited to one territory and in certain countries is not conditioned to a registration. This protection is also useful to enforce cultural rights and even in politics.

Such is the case of the legal battle between the news agency “The Associated Press” and the renowned urban artist and graphic designer Frank Shepard Fairey. This designer created the world-famous poster of a portrait of the former President of the United States of America, Barack Obama, in shades of red and blue, under the title “HOPE”; which was used during his first run for presidential election in 2008.

This design turned to be famous and became the advertising emblem and symbol of the Barack Obama’s campaign, that in fact was created by the artist independently; but in time and with the acceptance of American citizens, it obtained the approval of the Official Obama’s Campaign and some people distributed and sold successfully in the market, many t-shirts, posters and other souvenirs with the design.

Despite the above, in January 2009, The Associated Press (AP) claimed economic compensation for the unfair and/or unauthorized use of the photograph on which Mr. Fairey based his design creation, since the press company claimed that the mentioned photograph was taken by former freelance photographer Mannie García, who was hired by The Associated Press, so according to several newspapers, said company argued that the design was monetized by the designer when he sold many posters and t-shirts, in addition of the illegitimately use of the photograph taken by Mr. García, that is, without permission and without credit to the photographer.

Fairey’s defense relied primarily on claiming a fair use, under the argument that his work did not reduce the value of the original photograph and that such design was conducted under the limits of e Law, since it was a photograph found in Google and constituted by a “transformative” use of the photograph, a use that is allowed under the American Law on creative expression.

In the end, the artist and the Associated Press came to a private settlement in January 2011, part of which included a division in the profits obtained from the work.

Mannie Garcia himself stated he was “so proud of the photograph and what Fairey had done artistically with it as well as the effect it had,” but still was in disagree with the fact that Frank Shepard Fairey used the image without permission and without giving credit to its creator.

At Iberbrand, we have always chosen to design strategies that cover a broad panorama of a particular case, in order to provide protection on the intellectual property of our clients, generating solutions from different approaches to avoid future conflicts, suggesting multiple options if they are viable, one of these options is through copyright.

Christian Nava
Senior IP Attorney |
Copyright, IP Litigation
Christian has been practicing law for more than ten years, focusing on Intellectual Property and Constitutional Law. At Iberbrand®, he is the Coordinator of the Entertainment Department.
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