AP stakes a claim on 'Hope,' literally

It is perhaps the first truly iconic poster to be produced in the 21st century: the steadfast and upward-looking face of a presidential candidate, produced in a rich combination of just four colors, emblazoned with the word "HOPE." It has come to stand for the new president, Barack Obama; and its artist, poster painter Shepard Fairey, is being honored with awards and even documentary coverage from USA Network.

But now that it's all pretty much done, the Associated Press is claiming it is the rights holder for the photograph on which Fairey's work is based. Though it has not sued Fairey, as other sites are reporting, its attorneys have sent Fairey correspondence which apparently seeks compensation.

The AP used its own built-in press outlet to make a statement on its own behalf this morning, from director of media relations Paul Colford: "The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission. AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

But whether the AP can actually claim this right, is in itself in dispute. The photograph was produced by a freelance photographer, Mannie Garcia, who posted the photo himself along with Fairey's interpretations of it on his personal Web site. As Garcia writes, presumably proudly, "The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better known now as the 'HOPE' and 'PROGRESS' posters."

Professional photographer John Harrington posted a blog entry yesterday asserting that the AP could very well have a case for itself: "The copyright holder, whether Garcia or the AP, certainly has a claim. The AP certainly has the where-with-all to back it up," Harrington wrote. "The artists' gallery contacted Garcia likely thinking that he would just be so honored it was his photo that he'd give them a retroactive license, and everything would be ok. Instead, either the AP or Garcia is the owner, and they are defending their rights, as they should. Fairey made money on this art, why shouldn't the AP and/or Garcia?"

But precedent may not be on the AP's side in this case, as Fairey's attorneys could very well argue that the AP forfeited its right to assert its IP claim by having waited -- apparently deliberately -- until well after Mr. Obama won the election.

Attorneys from the Fair Use project have agreed to represent Fairey, and issued this statement this morning: "We believe fair use protects Shepard's right to do what he did here. It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."