The Claim
Street artist and OBEY clothing company founder Shepard Fairey found himself afoul of copyright law when his iconic Obama “HOPE” poster went viral in 2009.
Fairey admits to using freelance photographer Mannie Garcia’s April 2006 photograph of Obama as the underlying inspiration for his work. Facing allegations of copyright infringement from the Associated Press, who asserted ownership of the rights to Garcia’s image, Fairey went on the offensive. He sued the AP seeking a declaration that his artwork is protected by Fair Use doctrine under copyright law.
Fair or Infringement?
Fair Use doctrine applies a four factor analysis to determine whether the use of copyright-protected content is allowable without obtaining permission from the copyright holder:
Nature and character of the use
- Did Shepard Fairey make commercial use of the original photograph by selling HOPE posters and other merchandise?
- Transformative uses are defined as those that “add something new, with a further purpose or different character, and do not substitute for the original use of the work.” Did Fairey’s poster transform the original photograph?
- Specific fair uses are actually mentioned in copyright law. They include:
- criticism
- comment
- news reporting
- teaching
- scholarship or research
- additional uses protected by case law include parody and satire
- While all four factors must be considered holistically, this factor is generally given the most weight.
Fair use is really the breathing space under copyright law that is intended to allow people to use and refer to other people’s works in order to create new works.
Kerry Konrad, intellectual property law expert, quoted by the San Jose Mercury News.
There should be no doubt about the legality of Fairey’s work. He used the photograph for a purpose entirely different than the original, and transformed it dramatically.
Anthony Falzone, Fairey’s lawyer and executive director of the Fair Use Project at Stanford, quoted by the San Jose Mercury News.
Nature of the copyrighted work
- Creative works (paintings, fiction) have more protection under fair use doctrine than technical works (news photographs, reporting).
- Unpublished works have more protection than published works; the original photo was published by the AP.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- What amount of the original photograph is used in Fairey’s poster, and how substantial is that content in relation to the original? Is it the ‘heart’ of the work?
Effect of the use upon the potential market for the copyrighted work
- Does the sale of Fairey’s poster and other merchandise effect the potential market for the copyrighted work?
- Would the people who bought Fairey’s poster or merchandise choose to buy the original photograph as a poster or t-shirt, if it were available?
The Associated Press is disappointed by… Mr. Fairey’s failure to recognize the rights of photographers in their works. The photograph used in the poster is an AP photo, and its use required permission from AP.
Paul Colford, director of media relations for the Associated Press, quoted by the San Jose Mercury News.
The Associated Press countersued Fairey, claiming that Fairey made millions of dollars from merchandise sales featuring the Obama HOPE image without compensating or crediting the original photographer or the AP.
Our primary objective is to make it clear to the world that the Associated Press is the copyright owner of that photograph and what [Fairey] did was not fair use under copyright law.
Dale Cendali, lawyer for the Associated Press, quoted by the Hawk Eye.
The Outcome
The case was resolved in 2011 when Fairey and the AP agreed to settle out of court. Fairey pledged not to use another AP photograph in his artwork unless he licensed permission to do so, and agreed to share profits from the sale of HOPE merchandise with the AP. Further details of a financial settlement were not disclosed.
Learn More
Daily, Gregory. “Obama’s hope poster a rip off?” Denver Examiner (CO), 10 Feb. 2009, Denver Photography Careers Examiner. NewsBank, http://ezaccess.libraries.psu.edu/login?url=infoweb.newsbank.com/resources/doc/nb/news/1341FC0807AD7FF8?p=AWNB.
Hull, Dana. “‘Fair Use’ of Obama Image? – Artist Sues AP Over Photo That Inspired Iconic Work.” San Jose Mercury News (CA), 10 Feb. 2009, Valley Final, Local, p. 1B. NewsBank, http://ezaccess.libraries.psu.edu/login?url=http://infoweb.newsbank.com/resources/doc/nb/news/126926F214619EF0?p=AWNB.
Neumeister, Larry. “Judge urges settlement in poster dispute.” Hawk Eye, The (Burlington, IA), 29 May 2010, News – Iowa & Illinois, p. 8B. NewsBank, http://ezaccess.libraries.psu.edu/login?url=http://infoweb.newsbank.com/resources/doc/nb/news/13049AAB6C5EC3C0?p=AWNB.
“RISD grad Fairey, AP settle Obama-image copyright claims.” Providence Journal (RI), 12 Jan. 2011, All, breaking_news. NewsBank, http://ezaccess.libraries.psu.edu/login?url=http://infoweb.newsbank.com/resources/doc/nb/news/152422FECDDAB8F0?p=AWNB.
United States Code. “17 U.S. Code § 107 – Limitations on exclusive rights: Fair use.” Legal Information Institute, Cornell University Law School, https://www.law.cornell.edu/uscode/text/17/107.
United States Supreme Court. Campbell, aka Skywalker, et al. v Acuff Rose Music, Inc. 7 March 1994. Legal Information Institute, Cornell University Law School, https://www.law.cornell.edu/supct/html/92-1292.ZS.html.
U.S. Copyright Office. “More Information on Fair Use.” Copyright.gov, Jan. 2018, https://www.copyright.gov/fair-use/more-info.html.