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January 13, 2011 2:30 PM

AP Settles with Artist Shepard Fairey

Posted by Ed Shanahan

By Alison Frankel, The Am Law Litigation Daily

After the street artist Shepard Fairey admitted in October 2009 that he had lied about which Associated Press photograph he used as the basis of his iconic "Hope" image of President Barack Obama--and that he had manipulated evidence to cover up the truth--it was clear that this case wasn't going to be a good opportunity to test the principles of fair use. Indeed, the lawyers who first filed the declaratory judgment case against AP on Fairey's behalf (the Stanford Center for Internet & Society and Durie Tangri Lemley Roberts & Kent) withdrew in November 2009; Fairey has been represented since then by Jones Day.

On Wednesday the AP announced it had reached a settlement with the artist. Under the terms of the deal, Fairey has agreed not to use another AP photo without obtaining a license, and to share rights with the AP going forward to merchandise bearing the Hope image. Fairey also agreed to "additional financial terms that will remain confidential."

And though the press release announcing the settlement says that neither Fairey nor AP "surrenders its view of the law," that's a pretty small concession for Fairey. Reading between the lines of the announcement, the settlement appears to be a near-complete win for the AP and its lawyers at Kirkland & Ellis.

Moreover, lead AP lawyer Dale Cendali (who last week scored a nice victory for longtime client J.K. Rowling) told us in a brief interview Thursday that the Obama Hope litigation isn't over yet: AP is pressing on with its case against the clothing company that licensed the Hope image from Fairey. "We do not believe that's fair use," Cendali said. "We're due to go to trial in March."

The company, One 3 Two, Inc., filed a motion for summary judgment this week. "There is no evidence that One 3 Two intentionally removed copyright information or that it distributed copies of the [AP] photo with the knowledge that copyright information had been removed," the company's lawyers from Caldwell Leslie & Proctor and Brune & Richard argue in the brief. "Even if the AP can establish that Fairey took such actions--a fact that Fairey has disputed in his pleading and depositions--summary judgment should still be granted as to One 3 Two as it merely used the Obama image weeks after Fairey had created it, and without any knowledge as to Fairey's creative process."

The AP photographer who shot the image Fairey used, represented by Boies, Schiller & Flexner, had also appeared in the case, claiming that he owned rights to the photo. He has since moved to withdraw his claim.

We left a message for Fairey counsel Geoffrey Stewart of Jones Day but didn't hear back.

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