Associated Press vs Shepard Fairey

On posters, on buttons and websites, the image was everywhere during last year's presidential campaign: Shepard Fariey’s red, white and blue depiction of a pensive Barack Obama and underlined with the caption HOPE.

In February of this year the Associated Press brought a case against the Los Angeles based graphic artist accusing him of copyright infringement for using an AP photo originally taken in April 2006 by Mannie Garcia on assignment for the AP at the National Press Club in Washington as the basis of his iconic “HOPE” image. Fairly admitted that he used the image without credit or prior permission from Garcia or the AP but because he found the image on Google images, which is public domain, he has claimed fair use.

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.

Fairey claims that he created the Obama image as a grassroots tool solely to help Obama get elected president. The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees, stating on his site that he’s fighting these charges to "protect the rights of all artists and the basic rights of free expression" except in this case has become what is free if its posted online. Legal experts differ in their views on the Obama image. Some claim that Fairey had the right to use the photo, saying that he intended it for a political cause, not commercial use and therefore will certainly count in favor of the poster being fair use. The poster in no way diminishes the value of the photo, if anything, it has increased the original photo's value beyond measure, another factor counting heavily in favor of fair use. Fairey released the image on his website shortly after he created it, in early 2008, and made thousands of posters for the street.
As the image gained exposures, supporters of Obama began downloading the image and distributing it at campaign events, while blogs and other Internet sites picked it up. Fairey has said that he did not receive any of the money raised.

On the other side of the argument, copyright specialists question whether Fairey has a valid fair use claim. Jane Ginsburg, a Columbia University law professor states "what makes me uneasy is that claiming fair use suggests that anybody's photograph is fair game, as long as it is found in public domain, even if it uses the entire image, and it remains recognizable.”

In my opinion the HOPE poster/art is something totally different than the Garcia reference photo he used to create it. Artists work in this manner every day and have for years; they take existing imagery and change it into something else. I suppose one could argue that it is a derivative work, but everything created in the world is derivative. There are many existing photos taken of famous people by different photographers that look almost exactly the same or even images taken from public domain that inspire larger bodies of work. I guess this is a testament to our times – where there still lacks the existence of laws and protections that define how we categorize property found online.