Updated with comments from AP.
The Associated Press settled its copyright lawsuit against Shepard Fairey over his Obama “Hope” poster last month, but a related case against Obey Clothing, which sold clothing emblazoned with the same Fairey image, is headed to a jury trial in a New York federal court next month. Obey Clothing was hoping to make a similar case to the one Fairey was making-that its use of the Obama image, which is based on a photo taken by an AP photographer, was “fair use.” But Obey has apparently lost that argument.
In an order issued yesterday, the judge overseeing the case ruled that Obey Clothing can’t make any arguments at trial that Fairey’s image constituted a “fair use” of the AP photo. That doesn’t mean AP has won the case. In order to win, the AP will still have to convince a jury that the clothing stamped with the Obama image is “substantially similar” to the photo taken by AP freelancer Mannie Garcia. But without a fair use defense available, Obey Clothing will be fighting this case with one hand tied behind its back.
The transcript of the courtroom argument over “fair use” isn’t available on the federal courts website, and the judge didn’t explain his reasoning in the two-page order issued yesterday, so it’s hard to say exactly which of the AP’s arguments won the day here.
Because the fair use argument has essentially ended, the case will also be less important to copyright reform activists, who were hoping that the Fairey image would become a rallying cry for fair use rights in the digital age. But after Fairey admitted that he lied and destroyed evidence in the case, he became a flawed standard-bearer. The top-notch copyright lawyers from Stanford University and the Durie Tangri law firm, who were working for Fairey pro bono, terminated their relationship with him. (He quickly acquired new pro bono counsel from megafirm Jones Day, however.)
Fairey doesn’t own Obey Clothing, so the clothing company was able to choose to fight on despite his settlement. But Fairey does function as creative director for Obey Clothing and collects royalties when they sell clothing with his design on it. Obey Clothing didn’t respond to an email seeking comment on the judge’s decision.
Paul Colford, an AP spokesman, commented on the developments: “The AP is gratified by Judge Hellerstein’s ruling striking Obey Clothing’s meritless fair use defense. This is a simple case of direct copying by a T-shirt manufacturer for its own commercial gain. We are confident that the jury will find that the image that Obey Clothing used on T-shirts and other merchandise is an obvious copy of the AP’s copyrighted photograph.”
The clothing items that allegedly infringe AP’s copyright include T-shirts and hoodies with the Obama “Hope” image on them; some of them have text like “Hope” or “Progress” while others don’t. Documents in the case show that Obey Clothing sold approximately 233,800 items of clothing with the image. The cash value of those sales is redacted, but given that Obey Clothing sells many of its T-shirts for around $30 and hoodies for between $50 and $70, the total sales could be pushing the $10 million mark. Obey Clothing stopped selling the items with the Obama “Hope” image several months after the AP filed suit.
Fairey may well be called by one side or another to testify at the trial. But now the defendant won’t be an artist asking a jury to protect his creative freedom; it will be a T-shirt company that doesn’t want to pay royalties to the AP, even though it pays royalties on other clothing items. And it will be tough to make any point about artistic freedom at all now that a judge has thrown out the fair use argument. Overall, the case isn’t looking good for Obey Clothing.