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 …"

One would hope Mr. Fairey would be a little more careful with his language. The legal equivalent of "he started it" may sound great when arguing about the case over a pint, but to even suggest that the AP might need to obtain a license before publishing reproductions of artists’ works in news stories could create bigger problems for artists going forward than having to incorporate phone calls, royalties and paperwork when meddling with appropriation art should Fairey lose this case. When nobody is making any money producing news these days, it’s hard to justify transaction costs in covering arts stories if your lead-in image requires clearance.

Now in full disclosure, for dramatic effect I’ve not been completely honest with my analysis. Fairey’s real gripe is not with any newspaper taking a picture of a work of art and using it in a story about the work, but with the AP’s licensing of those pictures to other publications without artist permission. And the AP doesn’t lack for chutzpah – in March, the Fairey document notes, the AP marketed their photograph licensing database by including a photo of Fairey’s mural-sized painting in the same theme (appropriately titled the "Obama Hope Mural") on the database ‘s homepage!

So why exactly is this language blog-worthy? Unlike how some headlines may have interpreted this statement, Fairey’s legal team isn’t exactly asserting an infringement. Fairey is defending the AP’s counterclaim of infringement by using an age old equitable maxim – one who comes into equity must come with clean hands. For those who aren’t wearing powdered wigs, Fairey is saying that since the AP does a certain type of bad thing, they can’t turn around and sue someone else for doing the same type of bad thing.

Of course, if this was an infringement count, the AP might assert their own "fair use" defense – that their use for "news reporting" (specifically singled out as a likely candidate for a fair use claim by the fair use statute itself) is "clean" even without requesting permission. As if this case weren’t already full of them, the argument begs even more questions testing the limits of fair use: Assuming it would be a fair use to take and publish a photograph of a work of art for a single news story, would it be a fair use to license that same fair photo?

10 years ago one would be pretty frightened for local media everywhere if the answer was "No" and the AP started building in the costs of clearing all of their own photos before licensing them outward (or simply choosing not to license photos that carried infringement risk). However, when everyone with a cell phone is a free-lance journalist and photographer, the loss of the AP’s "public service" in making its content available to local press (to the extent there is any left) would seem the least of an editor’s worries right now.