New Development in the Shepard Fairey/Obama “HOPE” Poster Dispute: The AP’s Copyright in the Underlying Photograph Called Into Question

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Fairey et al v. The Associated Press, Case No. 1:09-cv-01123-AKH (S.D.N.Y, filed 02/09/2009)

A follow up to this blog post. As predicted, copyright ownership in the underlying photograph is turning out to be a point of contention in the federal lawsuit.

To refresh the reader’s recollection, Fairey, filed for declaratory relief on the basis of fair use, after the AP threatened to sue him for using its photograph without permission to create the famous “Hope” artwork; the AP counterclaimed on the basis of infringement of its copyright in the photograph.

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Last week, Mannie Garcia, who took the 2006 photo of Mr. Obama which Fairey admits was an inspiration for the “Hope” artwork, filed a Motion to Intervene and Memorandum of Law in the Fairey v. AP case. Mr. Garcia claims that he, not the AP, owns the copyright in the photograph because he was a freelance photographer at the time (in other words an independent contractor, not an employee); and that he never assigned his rights in the photograph to the AP. In support of his claim, Mr. Garcia proffers a copyright registration certificate for the photograph filed in March 2009. Mr. Garcia argues that he should be permitted to intervene in the lawsuit, under FRCP 24(a)(2) or in the court’s discretion, because his “interests are not adequately represented by either party:” on the one hand, Fairey “profited from the sales of Mr. Garcia’s copyright photographic image;” and on the other hand, the “AP seeks to reap some of the profit by claiming that it — and not Mr. Garcia, is the rightful owner of the copyright in the photograph.”

Stay tuned for further developments and the Court’s decision on Mr. Garcia’s motion.

Practice Pointer: This development serves as another reminder of the critical importance of securing copyright assignments in writing from independent contractors whose work you want to own, regardless of what their agreement might provide. It is a prudent practice, whether the contractor created an entire work for you (for example, a logo design or a photograph), or a piece of a larger project (such as a few lines of software code or illustrations for a book).

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