Thursday, April 2, 2009

Was Street Artist’s Use of AP Photo to Create Obama Hope Poster “Fair”? A Look at Where Infringement Ends and Transformation Begins

Lines have been drawn in the sand and the fight has commenced. A classic David and Goliath battle is set to take place in the U.S. District Court of the Southern District of New York between graphic artist Shepard Fairey and the Associated Press (AP). The spoils of this war? A definitive answer about what constitutes the proper interpretation of the law governing fair use of copyrighted works.

The Law

Copyright owners control the exclusive right to, among other things, prepare derivative works. For example, a screenplay based on a novel is a derivative work. But use of a copyrighted work for purposes like criticism and comment is not an infringement, but rather a fair use that does not require the permission of the owner. A court considers four factors to determine whether a use is fair: the purpose for the use, the nature of the copyrighted work, the amount used, and whether the use negatively impacts the potential market for the copyrighted work.

The Beef

It seems Fairey referenced a photo, owned by the AP, of then-presidential candidate Barack Obama to serve as inspiration for his artistic rendition of the candidate. That rendition became an iconic portrait of Obama and an unofficial but integral part of Obama’s grassroots message of hope and progress.

The problem is the photo on which the poster was based was taken by Mannie Garcia in 2006 on assignment for the AP at the National Press Club in Washington. Now a firestorm of controversy surrounds Fairey’s use. Was it fair or violative of the AP’s copyright? The answer lies in whether Fairey’s portrait is sufficiently transformative to constitute a new work, or whether it is merely a derivative of the photograph. The issue is whether Fairey has advanced the constitutional directive to “promote the useful arts” by adding something new or has merely leeched off another’s creativity.

Fairey, a Los Angeles-based “street” artist, is the modern day David in this story. And he drew first blood when he aimed his proverbial sling shot directly between the eyes of the AP and fired. Or, rather, filed. A law suit that is.

The term “street artist” is a bit misleading. Fairey did develop his craft and street cred at the underground level. But now he is graphic artist royalty, producing cover art for projects ranging from the Black Eyed Peas's album Monkey Business to The Smashing Pumpkins' album Zeitgeist and Anthrax's The Greater Of Two Evils. But Fairey’s artistry is more than creative. At its core, it’s political. His “Obey” campaign urges the observer to question obedience to social commands and the political status quo.

Fairey, well versed in the language of civil disobedience, is represented by Anthony Falzone of Stanford University’s Fair Use Project. His Complaint seeks a judgment declaring legal his use of the AP photo and an injunction against the AP. Recently, the AP counter-claimed asserting its infringement claim.

This is obviously shaping up to be one helluva battle! Stay tuned for updates. We’ll definitely be tracking this case.

- Tonya M. Evans, Assistant Professor of Law, Widener University School of Law

Author, Copyright Companion for Writers

(Photo by the Associated Press)


  1. I wonder if this would have been an issue at all if the artist hadn't admitted to using the AP photo in creating the poster? There are enough differences between the two (diffent posture, different tie color) that it probably would not have even been noticed.

  2. why would fairey file a lawsuit if he was not being sued for copyright infringement? wouldn't he wait to be sued and then defend against the infringement allegation by claiming fair use?

  3. @ Anonymous ... Good question. It seems Fairey wanted to proactively stop the AP from tarnishing his rep with claims of infringement and wanted to settle the matter once and for all. Therefore he filed a "Declaratory Judgment" requesting the court to settle the rights and responsibilities of the parties from jump. But generally speaking, copyright owners sue to stop infringement. This shows Fairey's lifetime commitment to challenge the status quo. Bold indeed! Stay tuned...

  4. this is awesome. Can't wait to see what happens. I'm of the opinion that once the AP put the photo out it should be open for interpretation. Must we actuall see something to make a artist rendition? or can we rely on circluated images? kudos for fairey's...


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