The judge made his remarks during a hearing in New York where, according to the AP report,  he ordered Fairey’s lawyers to hand in records of discussions Fairey had with his attorneys before he filed a pre-emptive lawsuit against the AP in February 2009. The artist filed his suit after the wire service claimed that his use of a 2006 photo of Obama taken by then-AP photographer Mannie Garciain in creating his famous Hope and Progress posters.

The AP countersued Fairey the next month. The news co-op claims that Fairey used the Obama photo “without permission from the AP, or any form of credit or compensation to the AP or attribution to the photographer.” Garciain is not involved in the suit.

In today’s hearing, the judge also said that the AP’s lawyers could depose Fairey once more. The dispute primarily rests on whether Fairey was allowed to use the photo for his art under the Fair Use Doctrine, which the U.S. Copyright Office says allows for the reproduction of a particular work if it’s used as for the purposes of “criticism, comment, news reporting, teaching, scholarship, and research.”

Money is also central to the case. The AP claims that Fairey made at least $4 million from products and reproductions of his Obama poster. Fairey’s attorney denied the artist had earned “millions,” though the AP story said Stewart’s argument rested on the fact that the proceeds had been given to charities and that financial penalties would likely bankrupt the artist.

Update: In a conversation with the AP’s lawyer Dale Cendali late Friday afternoon, the attorney told paidContent that the wire service was “encouraged” by the judge’s comments during the hearing, but was adamant that the organization is committed to continuing the case “in order to better protect the rights of photojournalists.”

From the AP’s vantage point, Fairey’s work does not constitute Fair Use because “making minor changes in a licensed photograph without permission” is not protected by the law. When I asked her about Fairey’s contention, which he told me last month as he was completing work on a mural in New York, about his use of the photo being similar to an AP photographer snapping a shot of his work for publication without a contract and compensation, Cendali said that argument “smacks of desperation. Typically, artists want photographs of their work to appear in news outlets, that’s why they send out press releases, isn’t it? The point of copyright is to incentivize the production of original work. If we lose this case, what will that say to photographers who take pictures for us of world leaders and events, knowing that someone else can reap the financial benefits of it?”

Well, the two sides will be arguing those points all summer. Fairey’s lawyers have until June 30th to produce the communications between the artist and his previous attorneys before his pre-emptive suit was filed. Then, on July 31st, the second depositions of Fairey will take place. The next hearing is scheduled for sometime in August.