First thing's first: Go here, http://www.breitbart.com/article.php?id=D9652OD01&show_article=1&catnum=8, and take a look at the AP Copyrighted picture of President Obama, and visually compare it to the (now famous) poster of President Obama by artist Shepard Fairey. Look a bit similar? The AP certainly seems to think so.
As the article with the images explains, the AP alleges that Mr. Fairey's poster of President Obama infringes on their copyrighted photo.1 Mr. Fairey admits that he based his poster off of the AP image, but claims that his poster constitutes fair use.2 So who's right here: The AP or Mr. Fairey?
Assuming that both images constitute an original work of authorship fixed in a tangible medium of expression, the issue becomes: (1) Is Mr. Fairey's poster an unauthorized derivative work; and (2) If so, may he successfully defend his image with fair use? Sure.
As a brief, basic description, a derivative work is one based upon a preexisting work.3 Mr. Fairey admits he based his poster upon the AP image, and thus, I think its clear that the poster constitutes a derivative work.
More at issue is whether Mr. Fairey's poster constitutes an infringing derivative work. The test for whether a derivative work infringes on the original copyright owner's rights is that of substantial similarity: The derivative work must take enough subject matter from the original work that a jury finds the works substantially similar to each other.4
Personally, I am a bit skeptical that the works are substantially similar. I find the posing of President Obama in each picture the most similar part of the works. Other than the pose, nothing else seems substantially similar to me. The photo background contains a flag, the poster background contains a red side and a blue side. The AP photo arguably conveys hope through Obama's quiet, upward gaze. However, I feel the poster not only conveys hope, but a patriotic feeling of change, made explicit by the "HOPE" wording on the bottom of the poster. Further, the poster washes Obama's image in red, white and blue. The photograph is realistic in every sense. However, this is a question of fact - the AP doesn't want me on their jury for this one because I really don't find these substantially similar. However, assuming arguendo that the images were substantially similar . . .
Fair Use. Mr. Fairey's attorneys claim that the poster constitutes a fair use of the photograph. The elements to examine in determining whether a work constitute a fair use are: (1) Nature and Purpose of the use (e.g., commercial or educational); (2) Nature of the copyrighted work; (3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) effect of the use upon the market for or value of the copyrighted work.5
Regarding nature of the use, it seems that Mr. Fairey initially made the poster as a way to garner attention for Barack Obama's campaign. After he made the poster, demand skyrocketed and it became a viable commercial commodity. I'll call this one a split 50/50 in favor of both parties.
For nature of the copyrighted work, the AP is in the business of selling newspapers and images involved with those newspapers. I think that the nature of the copyrighted work is more commercial than educational or news related, but again, this could split. 50/50 again washes factors 1 and 2.
Amount and substantiality. I think this goes to Mr. Fairey. Yes, he took the pose, but he also added the wash of patriotic colors, the word "HOPE" and made the image more of a patriotic vision than a photograph. Further, I do not think the pose on its own was so inventive that Mr. Fairey took the heart of the APs work.6 There are many pictures where people are posed looking skyward in a thoughtful fashion.7 For instance, this poster from Stepbrothers - http://126.96.36.199/images/poster-stepbrothers.jpg. This factor goes to Mr. Fairey.
Which leads to whether Mr. Fairey's poster was a market substitute... This element seems to me the hardest one to determine. Would the demographic that would purchase the photo now purchase the poster instead? Would people who like the photo have ever purchased the poster? Are the photo and poster even really part of the same market? Obviously, the AP thinks so - they want credit and compensation for their photo being the basis of Mr. Fairey's poster. While I find this element possibly a 50/50 split, I don't like ties: I personally do not think that the poster took away the market for the photo. I would not purchase the AP photo regardless of whether Mr. Fairey's poster came into existence. I would purchase Mr. Fairey's poster as I think it represents what President Obama's campaign was about: Hope and a rejeuvenated passion for the United States. There's something iconic about the poster. While the photo is great, its not iconic - it seems more of a really good press shot.
Thus, I personally think that Mr. Fairey would win on a fair use defense if this matter came to trial. However, that would depend on the jury, and things are fairly close here. It would be interesting to see how the matter played out.
1: Hillel Italie, AP alleges copyright infringement of Obama image (Feb. 4, 2008), http://www.breitbart.com/article.php?id=D9652OD01&show_article=1&catnum=8.
3: 17 U.S.C. s. 102(a) (2006).
4: Castle Rock Entm't, Inc. v. Carol Pub. Group Inc., 150 F.3d 132, 137 (2d Cir. 1998) ("Since the fact of copying is acknowledged and undisputed, the critical question for decision is whether the copying was unlawful or improper in that it took a sufficient amount of protected expression from Seinfeld as evidenced by its substantial similarity to such expression.").
5: 17 U.S.C. s. 107.
6: See e.g., Harper & Row