By JP Benitez, Attorney at Law

Last time on Fairey vs. the Associated Press: Shepard Fairey, an artist, went to court to declare his use of a news photograph of Obama at a press conference in making his now-infamous "Hope" poster was a fair use under the Copyright laws of the United States. The Associated Press (the owner of the copyright in the photo) counterclaimed that Fairey’s use constituted an infringement of their rights in the photo.

The LA Times culture blog links to a story covering more Shepard Fairey and his Obama poster legal antics. This time, Mr. Fairey pointed the finger back at the Associated Press suggesting that the AP’s use of his "Hope" poster image without obtaining his permission was inappropriate. One of Fairey’s affirmative defenses to the AP’s counterclaim (filed 4/14/09, page 29) notes:

"The doctrine of unclean hands and basic principles of equity prohibit The AP from contending that Counterclaim Defendants’ Obama Works infringe The AP’s copyrights when The AP itself exploits the copyrighted work of Fairey and other artists without permission and in a manner that is far less transformative than the Obama Works …"

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By John Paul Benitez & Coco Soodek, Attorneys at Law

Several months ago, the American Watercolor Society awarded its 2008 Gold Medal to Sheryl Luxenburg for the work Impermanence (pictured above), a hyper-realistic painting of an old man juxtaposed with a rotting piece of fence. Luxenburg’s prize-winning work consisted of emulations of two stock photographs. Employing a pointillist’s technique, Ms. Luxenburg blew up the two stock images and used the enlarged pixilations to guide her brush.

A series of spontaneous, vigorous debates erupted on the Web about Luxenburg’s conduct and entitlement to the prize. Many people assumed that Impermanence infringed on the copyrights of the stock photographers and, therefore, should be disqualified.

These assumptions about infringement and about ways to avoid it underscore a persistent and confusing question for the pop or mixed-media artist: When do you cross the line into copyright infringement?

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