Fairey Use: Associated Press Charges Copyright Abuse Over Use of Image in Iconic Obama “Hope” Picture

41h14teq8al_sl160_aa115_Perhaps the most iconic image from the inauguration was the “Hope” poster by artist Shepard Fairey. It will now be the most litigious. Associated Press has alleged that the artist committed copyright infringement over the use of one of its pictures taken by Manny Garcia at the National Press Club in Washington. She and some experts insist that it falls into the fair use exception for copyrighted material.

Fairey admits that her poster was based on an Associated Press photograph, taken in April 2006 by Garcia.
Fairey is represented by Anthony Falzone, executive director of the Fair Use Project at Stanford University who says that they intend to argue fair use. This doctrine turns on how much of the origingal was used and what it was used for.

The fair use provision states:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

In this case, the picture was significantly changed in its coloring, background, and even his tie color. There is also the question of the value of the picture with a great number of similar shots now available in the public domain.

For the full story, click here.

11 thoughts on “Fairey Use: Associated Press Charges Copyright Abuse Over Use of Image in Iconic Obama “Hope” Picture”

  1. The artist should never have credited the piece to begin with. That particular pose was not unique in and of itself and was available to be seen via TV, other photos, and by anyone watching Obama speak in person.

    I think there is enough difference between the photo and the remake, that it would have been difficult to prove, since Obama is Obama and there will be striking similarities in any reproduction of his likeness.

    I would not argue fair use, but rather the image belongs to Obama himself and that the AP photo does not offer any new, copyright-protected information on his likeness with their photo, as the sources I cited above also provided the same shot.

    However, it’s done now. And Americans do love their lawsuits, especially when the big guys chew up and spit out someone who can hardly afford to fight them.

  2. “Derivation is not de facto copyright infringement”

    Nor is it automatically considered Fair Use.

    For the record I think AP will lose this one because “the nature of the copyrighted work” and “the effect of the use upon the potential market for or value of the copyrighted work” are both ~nil impact. Further, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” while an obvious full scale replication using the original as a basis still constitutes a ‘new work’. The issue here is that the painter is using there derived product in a commercial manner.

    As is often the case I think the misunderstanding is that I’m talking about forests, not trees.

  3. MAS,

    Derivation is not de facto copyright infringement. If so, there wouldn’t be a writer in the world not subject to suit by Shakespeare’s estate and he’d be looking a suits from the Greeks. Every modern vampire story subject to claims by the estate of Bram Stoker? The addition of materials and labor changed the intrinsic value to substantially differentiate the new product in both style and application from the source material. AP takes and sells news photos. This guy painted a political poster. Different products, different application and the defining work done by different people.

  4. Buddha Is Laughing,

    Just because I can’t paint doesn’t mean that I should lose any rights over any painting based on my work. Let me pose a hypothetical: a masterwork painting is created, I take a photo of the painting using my talents as a photographer, using lighting and filter settings I am able to create a photo that clearly resembles the original but does have some noticeable differences. Is that fair use?

    Mike Spindell,
    “property rights over DNA”

    This has already occurred. Look up HeLa Cells, where a Doctor was able to get a patent on cells he cultured from one of his patients without her permission.

  5. This is nice. Tells you a lot about Neocons and the lesson of not becoming what you fight. Further proof there are enemies within that need to be dealt with. Rep. Pete Sessions (R-Texas) is endorsing insurgency tactics against the Neocon’s opposition. This guy needs to be looked at REAL HARD. He’s not fit for office. And I suspect a revisionist apologist as well.


  6. This whole push by corporate entities to lock down intellectual property rights is another chilling example of corporatism running wild. I understand why this is important to people like writers, etc. It seems though the corporations are trying to push it to unforeseen levels. If given half a chance they’ll be trying to assert property rights over DNA. Reasonable laws and legal precedents must be forthcoming, or we as citizens are going to find ourselves victims of corporate strangleholds in areas we can’t yet imagine. Problematic to this is that the courts have been packed by judges who view corporate rights superior to public rights.

    This last in the end might be the difference between real conservatives and what I call the faux conservative movement that has captured the Republican Party. Real conservatives respect the rights of individuals and citizens as well as those of corporate entities. They are constitutionalists who take the Bill of Rights seriously. Faux conservatives put corporate rights above those of citizens and attain power via a merging of that ethic (or lack of same)with religious zealots who don’t realize how inimical the two positions really are.

  7. The value of a painting is not in the source material, but in the application of the paint to the canvas. They in essence want to make more money photo by trying to lean on an artist for using his eyes and skill to make something THEY COULDN’T. If they could, they’d have made the posters. Period. This is like Gustav Eiffel suing someone for painting a Paris skyline. They didn’t paint this poster anymore than Gustav painted the thousands (millions?) of paintings of Paris since he built the tower. It’s NOT THEIRS. The profits (if any) don’t belong to them. Unless AP picked up a brush, they should go screw themselves.

Comments are closed.