Too Close For Comport
It appeared on buttons, posters and Web sites, it's the image that was everywhere during last year's presidential campaign. Barack Obama looking upward, as if to the future, red, white and blue and underlined with the caption HOPE. Andy Warhol came to mind as the orginal insipiration.
Designed by Shepard Fairey, a Los Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay. You can even "Obamaize" yourself with a Facebook application.
The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.
"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement. "AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."
"We believe "Fair Use" protects Shepard's right to do what he did here," says Fairey's lawyer, Anthony Falzone, executive director of the "Fair Use" Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."
"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.
The nature of the copied work is simple documentary photography of a press conference, not something fictional or highly creative. And the poster doesn’t reduce the value of the AP photo; if anything, it greatly increases it.
If you want to try your hand at analyzing "Fair Use" in this case, Wikipedia lays out the four factors a court will apply. I always remind myself of the old Odd Couples show that taught me to never assume (when you do, you make an ASS out of U and ME) and only a fool hires himself as his lawyer. Careful when you think about borrowing a little of this and little of that.
The only factor that cuts the AP’s way is number three, the fact that Fairey swiped pretty much the whole image to make his poster — but then, that’s what Google does to make its thumbnails and everything’s copacetic with that. Verdict: Fairey wins in a walk. Rock on, “rebel” establishment hagiographer!