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The Barack Obama 'HOPE' Image Case Is NOT Over

Analysis: Why the remaining legal claims in this case still merit attention

Barack Obama "HOPE" image

On Wednesday, the Associated Press announced that it had settled its lawsuit against Shepard Fairey, the street artist who allegedly took a copyrighted photo to create the famous Barack Obama "HOPE" image. Many media outlets reported the end of the battle, but left out one fact -- it's not over.

Even as AP was coming to resolution with Fairey himself, the media organization was continuing to pursue claims against the companies that licensed the "HOPE" image -- directly or indirectly -- from Fairey. Just a few days before a judge in the case dismissed AP's claims against Fairey as the result of a settlement, the AP filed a motion for summary judgment against those licensees, who allegedly made millions of dollars in t-shirt sales adorned with the "HOPE" image.

But let's back up for a moment.

When Fairey first filed his lawsuit against the AP, seeking a declaration of his rights, and AP counter-sued, the case was expected to be a significant one, testing among other things, whether news photography deserves copyright protection, the boundaries of creative expression to make "fair use" and transform original work, and the supposed unlawfulness of finding an image on the Internet and stripping away a copyright notice.

The case, and attention to it, then got distracted upon word that Fairey had lied during the process and spoiled evidence.

Now that those distractions have been taken care of as the result of the settlement, perhaps the case becomes important once again. A good place to consider the stakes is AP's motion for summary judgment against the "HOPE" vendors and the court papers filed in response by One 3 Two, one of the sub-licensees.

The AP is still pressing its claim that its copyright in the image is legitimate, and it walks the court through the four-factor test to show why "fair use" doesn't apply. The AP claims the "legal issues presented by this case are garden-variety copyright infringement matters."

Au contraire, says One 3 Two.

The company still wants to test whether the AP can claim copyright infringement in Fairey's work, which it says lacks similarity to the AP photograph (which the company says isn't protectable anyway). Check out this bomb-throwing statement by One 3 Two in its brief: "The AP is essentially trying to copyright the face of Barack Obama, which is not protectible, and that goes far beyond what the law allows."

Elsewhere in the brief, One 3 Two says it had no knowledge that Fairey removed the copyright notice, that it had no idea which photograph Fairey had used, and no idea about Fairey's creative process. As a sub-licensee, the company claims it has no liability to hand over indirect profits from an alleged infringement.

So Fairey is now gone as a party to this lawsuit, though who knows -- if it ever gets to trial, he may be forced to testify. In the meantime, the big legal issues that made this case one to watch in the first place, still remain to be settled.