Shepard Fairey and the Obama poster

This flashed me right back to Langvardt's art law class.

Artist Shepard Fairey is the creator of the famous Obama "hope" poster. But the high-contrast, red and blue shadowed images were apparently based on an Associated Press photograph, taken by freelance photographer Mannie Garcia. (Additionally, there still seems to be some contention about who holds the copyright between Garcia and the AP, but we might suppose Garcia took the photo on a work-for-hire basis granting the AP the copyright). The parties sued and counter-sued, and I've google-news searched it and I can't find any results. So the question stands: did Fairey violate copyright law?

Fairey's poster is a derivative work, and only the owner of a copyright maintains the right to prepare derivative works based upon the copyrighted work. Strike, he's out?

Fairey might argue "fair use." Fair use includes use "by reproduction...for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research..." and is not considered copyright violation, meaning you can use someone else's work without permission and without paying them if you're using it for these purposes. Fairey might claim commentary, but this wouldn't be obvious without his explanation. These four factors must also be considered in determining if the use of a work is fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (Purpose of the original was to report the news, the purpose of the derivative was to influence a campaign and project an opinionated image of a candidate, giving the derivative some transformative boasting rights; that said, Fairey sold his posters and kept the money); (2) the nature of the copyrighted work (the photograph had been published); (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (derivative used one of the two significant features of the photograph); and (4) the effect of the use upon the potential market for or value of the copyrighted work (use has definitely INCREASED, not damaged, the market value for the original work to $1,200 apiece for prints).

What do we think?

I might argue an additional consideration is that Fairey's Obama image is not so obviously derived from Garcia's photo, until you put them side by side. Obama is a consistent looking guy, generally lacking any drastic facial expressions - most photos of him look similar. A talented arist could render an image of him that looks seemingly identical to a thousand pictures of him. Garcia himself did not recognize Fairey's image as a derivative of his own. A Reuters photo by Jim Young was so similar, the photo was incorrectly reported as the source of the poster image, for some time. Fairey used only a portion of the original photograph; if the original was a zoom-in on Obama's face, it might be different.

Copyright infringment is qualified by three factors: (1) access to the original work can be proven (Fairey found the pic on google. Check.), (2) there was copying of the distinct expression of the original work, not just the idea, or style, (Maybe...AP/Garcia has a copyright on the composition of the photo, not on Obama's facial features and posture.) and (3) the substantial similarity to the original work is evident – that is, there is enough copying that it could not seem coincidental to an average observer (The buck stops here....) If I looked at Garcia's original photo, and all other Obama photos, and realized as I have that his facial expression is about the same, the copying of the head tilt in Fairey's poster would probably seem coincidental to me. It's not; Fairey did use Garcia's pic. But it took months for anyone to notice, and hours for image searchers to put the two together.

Arts supporters walk a fine line regarding which way we wish copyright law to fall - both sides are worthy of support: 1) you want intellectual property to be protected so artists can make a living from what they create, and have incentive to create, but 2) you don't want it too strict, so other artists can make new art from old art and not stiffle new work.