During last year’s presidential campaign, the Obama HOPE poster designed by prominent street artist Shepard Fairey achieved iconic status. Soon after Fairey’s poster appeared in early 2008, it went viral: on t-shirts, buttons, Internet sites, coffee mugs, even on bicycle spoke cards. Now, the Associated Press (AP) has approached Fairey with a demand for credit and compensation for use of the original AP photograph, alleging that Fairey’s use infringes AP’s copyright.

Fairey has acknowledged he used AP’s shot as the basis for his poster, but claims that his use of the photo was a fair use under copyright law. In fact, in response to AP’s actions, he’s actually filed suit for a declaratory judgment that would confirm his fair use claim and effectively protect him against AP’s claims of infringement.

Given the ubiquity of the Obama HOPE image and given Fairey’s notoriety, this affair has generated immense play. For all the noise, this case will probably settle before it goes to trial.

Neither the copyright claim that AP makes, nor the fair use issue that Fairey argues, is particularly clear cut. On the copyright side, it’s not clear whether there’s sufficient creativity to merit much copyright protection. Copyright protects creative expression. The resolute expression in the AP photo at issue here—the framing, the angle, the choice of just the right moment to shoot, and that now famous tilt of Barack Obama’s head—are all very interesting, but this was one shot of many taken by a pool photographer snapping away at a public event, not a picture taken in a posed setting. So it’s hard to argue that there is much creativity in the original photo. There is also a question of whether AP even owns the copyright, since photographer Mannie Garcia was temping for AP, without contract, when he took the photograph in 2006. Garcia is working with AP to resolve this matter.

Can Fairey establish a good fair use defense in this case? Maybe. Fair use is intended to allow limited uses of copyrighted works, mainly for socially beneficial purposes like scholarly research, social commentary and criticism, as well as for certain highly “transformative” uses, without the permission of the copyright owner. Clearly, Fairey added creative elements to the original photo—use of different media, color and background, for example—and has argued that his work is transformative. He has also added social and political messaging (”Hope”, “Progress”, etc.). On the other hand, Fairey’s poster is undoubtedly a derivative work, and if there are creative elements in the photo that are protected by copyright, Fairey has arguably employed all of them. Interestingly, Fairey may not have received direct payment for the rampant commercial use of the Obama HOPE image, but the artist has definitely received a great deal of valuable publicity.

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