Blog: Is Obama poster a ripoff of AP photo, or fair use?

Friday, February 27, 2009

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A legal dispute over a celebrated poster showing President Obama goes to the heart of a very modern debate over what is “fair use” of images readily available on the Internet.

Artist Shepard Fairey developed a widely used poster of Obama based on what most agree was a 2006 photo taken at the National Press Club by an Associated Press freelance photographer, showing Obama sitting next to actor George Clooney. Fairey says he found the image in a Google search. Fairey and Obey Giant Art, Inc., owned by the artist and his wife, Amanda, sued the AP on Feb. 9 in federal district court in New York, asking the court to protect him from copyright claims raised by the news organization.

The dispute revolves around a complex part of copyright law called “fair use,” and whether Fairey’s artistic work was “derivative” or “transformative.” If it’s the former, a court might find that he owes money to the AP (which asserts that it owns the press club photo) or to the freelancer.  If it’s the latter, a court might find that the image and the artist are entitled to an exception under copyright law.

The two opposing positions can be summed up as:

  • Fairey owes money to the AP and/or the freelancer:  The photo, showing Obama with head slightly tilted upward and looking out, is the exact angle and image in the freelancer’s photo. Sure, the artist added colors and replaced the original Stars and Stripes flag background, but essentially the image is Obama as shown in the photograph.

  • Fairey is entitled to “fair use” protection: The artwork goes far beyond the photo by means of artistic efforts — color, shading and the like. As such, it meets conditions set out for protection, among them that only a portion of the original image is used, and the poster and stickers Fairey produced are used differently than the original photo.

    In some ways, the dispute echoes an issue raised in the 1960s by artistic works produced by Pop Era artist Andy Warhol that were based on the iconic Campbell’s Soup red-and-white can — but no lawsuit was filed in that instance.

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