On Tuesday, lawyers for artist Shepard Fairey filed their countersuit against the Associated Press, alleging that his use of one of their photos of Barack Obama in creating the iconic “Hope” portrait is protected within the bounds of fair use. Using the “doctrine of unclean hands,” Fairey’s lawyers also contend the AP is engaged in similar behavior to that they’ve accused Fairey of. One section of the document details more than a dozen instances of the AP copyrighting and profiting from photos that are nearly or exclusively composed of copyrighted artworks they don’t have permission to, including works by Fairey, Banksy, Jeff Koons and other artists.

d. On January 7, 2009 The AP distributed a story entitled “Iconic Obama portrait headed to Smithsonian museum” by Brett Zongker. The AP’s article included a photograph attributed to The AP, which depicted Fairey’s Obama Hope Stencil Collage that now hangs in the National Portrait Gallery of the Smithsonian Institution. (A copy of the full article is attached as Exhibit A and available at [Link]) The AP did not obtain a license to use Fairey’s work in this photograph. As shown below, the photograph attributed to The AP consists of nothing more than a literal reproduction of Fairey’s work.

e. The AP’s image database contains the following photograph of Jeff Koons’ sculpture entitled Ushering In Banality. On information and belief, The AP did not obtain a license to use Koons’ work in this photograph.

f. The AP’s image database contains the following photograph of Banksy’s Sketch for Essex Road. On information and belief, The AP did not obtain a license to use Banksy’s work in this photograph.

The Associated Press was still reviewing Fairey’s countersuit yesterday, but said, “it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP’s copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities.”

Fairey’s attorney, Anthony Falzone, responded, saying the AP statement “misses the point” and pointing out that while the photos may have once been used for reporting the news, “they are presently for sale on The AP’s image licensing database as a commercial product for “professional photo buyers.” Falzone clarifies:

“The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists’ work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way.”

Interestingly, Fairey and lawyers continue to deny that a close-up shot of President Obama was used as the basis of Fairey’s work, instead claiming the so-called “Clooney Photo” was used as a visual reference.