A man looks at a shop window plastered with posters Shepard Fairey's image of Barack Obama in New York City.
An artist who created a famous image of Barack Obama before he became president filed suit against The Associated Press on Monday, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.
The lawsuit filed in U.S. District Court in Manhattan said street artist Shepard Fairey did not violate the copyright of the April 2006 photograph because he dramatically changed the nature of the image. The move was made from jail, sort of, because Fairey was arrested in Boston for an unrelated incident.
The AP has said it is owed credit and compensation for the artist's rendition of the picture, taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington.
Lawyers for Fairey acknowledged that the artist used the photograph. But they said he transformed the literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."
AP spokesman Paul Colford said the AP was "disappointed by the surprise filing."
He said in a statement that the AP had agreed last week not to take legal action while it was in settlement talks, but that Fairey's attorney broke off contact Friday.
Colford said the AP had indicated that any settlement would benefit a charitable fund that supports AP journalists worldwide who suffer personal loss from natural disasters and conflicts.
"AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others," Colford said.
The AP has not taken legal action against Fairey. But his lawsuit noted that the AP had threatened twice to sue Fairey, possibly as early as Tuesday, and that it considered all works that incorporate the imagery of the "Obama Hope" poster to be infringements of its copyrights.
The lawsuit said the purpose of the photograph documented the day's events while Fairey's art, titled "Obama Progress" and "Obama Hope," was meant "to inspire, convince and convey the power of Obama's ideals, as well as his potential as a leader, through graphic metaphor."
Fairey's image became popular on buttons, posters and Web sites. It showed a pensive Barack Obama looking upward. It was splashed in a Warholesque red, white and blue and underlined with the caption HOPE.
The lawsuit noted that Fairey first began distributing his Obama images in early 2008 and that Obama thanked him in a Feb. 22 letter for his contribution to the presidential campaign.
When asked Monday about AP's position, Fairey said: "It's a suppression of an artist's freedom of expression." His attorney advised him not to say anything else.
The lawsuit was brought on Fairey's behalf by the Stanford Law School's Fair Use Project and a San Francisco-based law firm.
"There should be no doubt about the legality of Fairey's work," said Anthony Falzone, executive director of the Fair Use Project. "He used the photograph for a purpose entirely different than the original, and transformed it dramatically."
The lawsuit was filed on the same day that Fairey appeared in two different Boston courtrooms, where he pleaded not guilty to charges he tagged property with graffiti.
He allegedly vandalized a Massachusetts Turnpike Authority building last month as part of one of his street art campaigns. Fairey also pleaded not guilty Monday to a charge of placing a poster on a Boston electrical box in September 2000. Boston police said he had failed to appear in court in the 9-year-old case days after his arrest.
The 38-year-old Los Angeles resident was arrested Friday when he was in Boston for an event kicking off his exhibit at the Institute of Contemporary Art. At the time of the arrest, detectives were aware that Fairey had failed to appear in court in 2000, said Jake Wark, a spokesman for the Suffolk County district attorney's office.
Fairey was ordered to return to court on the Boston charges for pre-trial hearings on March 10 and 11.
"I'd love to be able to feel like the culture of Boston continues to encourage freedom of expression," Fairey said after Monday's hearings. "If that's not going to be the case, I'll deal with that."