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

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.

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