Shepard Fairey is the artist who created the famous Obama “HOPE” poster, ubiquitously seen in its original form or some derivative form on cars, lockers, windows, backpacks, and so on. Recently, the Associated Press sued Fairey for a violation of copyright: he based the Obama image below off a photo whose copyright is owned by the AP, also seen below.
The claim is fairly clear. The owner of copyright, according to 17 U.S.C. § 106, possesses the right to reproduce the copyrighted work in copies and to prepare derivative works based upon the copyrighted work. The copyright code also lists various remedies that the owner of the copyright has for infringement, usually involving some measure of monetary damages depending on the extent and intent of the dastardly deed.
On the merits of this alone, given copyright law, the AP would seem to have a competitive claim, meaning that it isn’t something that would just be dismissed. There’s no doubt given the comparison that Fairey used the photo in question. The real question is: was Fairey’s infringement a fair use? It does seem difficult for Fairey to prevail here given current copyright law, but if I was a Judge, I would definitely want to try and limit the scope of copyright protection such that this would be declared a fair use because it is transformative. The colors are completely different and perhaps more important, Fairey’s Obama poster was sold in a completely different market than the photo. If anything, sales of the photo would probably pick up as a result of the association, royalties or no. This policy would foster creativity, perhaps slightly at the expense of production.
It seems as though Fairey was cognizant of copyright law and panicked upon being sued. Last week, news such as the LA Times started reporting that he had submitted evidence claiming that he used a different photo for the poster’s creation, though it was one from the same event and photographer. Despite how glaringly obvious a lie this was, he stuck to it for a while and finally relented.
The tragedy here is that this could have been a landmark copyright case, and though the fair use aspect of Fairey’s case remains in play, his effort has been tainted. In copyright cases, good faith can be a significant factor in both awarding damages and declaring judgment.