Shepard Fairey Illegaly Used Image for His Obama Hope Poster

Shepard Fairey illegaly copied the image of Barack Obama used in his now famous 'Hope' poster claims the Associated Press in a lawsuit. A strong accusation to throw at any artist but an absolute bombshell when speaking of the seminal work of art of the past 50 years. In my opinion, it is as bold as accusing Leonardo DaVinci of ripping off The Mona Lisa. I say this because no other artistic expression in recent memory has impacted world events the way this poster did. It is really not unfair to state that Barack Obama owes a great deal of the success of his campaign to this image.

I am not a lawyer, para-legal or pre-law but I would like to throw down my view of what the legal arguments are here. The two terms that will be thrown around the most around this argument would be 'derivative work' and 'fair use'. Clearly, by his own admission, Shepard Fairey based his image on the photo taken by Manny Garcia who was reportedly on assignment for the Associated Press. Fairey's Hope poster could be considered a copyrightable image in its own right if it differed enough from the photo and included substantial orignal creative elements.

But so far a copyrightable derivative work has not been Shepard Fairey's defense. He instead is claiming that his use of that image falls under fair use. The guidelines for fair use are not black and white and are a judgement call. Some of the factors considered are the purpose of the work (criticism, comment, news reporting, education or research), its impact on the market value of the original and the amount of the portion used in relation to the copyrighted work as a whole.

One could claim that Shepard Fairey used such a small portion of the original that it falls under the fair use umbrella. Or that the Obama Hope poster was a non-profit work for the purpose of political commentary which could also be considered fair use.

However the case may go it is of little doubt that the original image does not have the artistic value that Shepard Fairey's interpretation does. The technicalities that warrant court action for credit and compensation are trival compared to the spirit of the piece. That photo would hardly be the inspiration that the Hope Poster has been. The AP certainly does not deserve credit for that.