Business And Law

Street artist Shepard Fairey, who was graduated from the Rhode Island School of Design, and the nation’s largest news wire service, The Associated Press (A.P.), sued each other over who owns the right to use and sell a well-recognized photograph image of President Obama. The A.P. claims that Fairey is profiting from a photo taken by a freelance photographer, Mannie Garcia, at the National Press Club in Washington, D.C.  Fairey used the photograph as inspiration for his familiar “HOPE” poster, which became an unofficial symbol of the Obama presidential campaign.

Fairey claims that he simply used the A.P. photo “as a visual reference” and that his poster transforms the image in Garcia’s picture into a brand-new work of art with its own copyright protection.

The U.S. Copyright Code gives the creator of a photograph (or any kind of creative work, including movies, books, articles and songs) – the legal right to limit how other people can use the photo.


A photograph, like any piece of creative work, becomes protected by copyright as soon as it is “fixed.” That means, as soon as the image is recorded in the photographer’s camera. The photo does not have to be registered with the U.S. Copyright Office or marked with the (c) copyright symbol to be legally protected.

When a photo is copyrighted, that means that the owner has the right to decide how other people use it. A wire service like The Associated Press makes its money by charging newspapers, magazines, broadcasters, and websites a fee to use its photographs. So, the A.P. is very protective about making sure that people are not duplicating or reselling its photos without a license and paying.

Photos are protected by copyright even when they are placed on the Web in a way that makes it very easy to duplicate them. An owner does not give up his copyright just by displaying the photo on a website.

If a person is accused of violating copyright law (“copyright infringement”), he can defend himself by proving that he made a “fair use.” The federal copyright law recognizes a “fair use” defense to allow people to make limited use of other people’s creative work, as long as they add some new creative value or meaning. Common examples of fair use are sampling a phrase from a popular song recording as part of a new song, or showing a brief clip from a movie to go along with a movie review.

To decide whether someone’s use of another person’s creative work is or isn’t a fair use, there are four points to consider:

Section 107 of the Copyright Act defines fair use as follows:

[T]he 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.

Or, another way to look at the 4 factors is:

  1. Who is the user? A nonprofit, journalistic, or educational use is more likely to be a fair use than a for-profit commercial use.
  2. What is being used? A highly creative piece of work – like a movie released in theaters – is more likely to be protected than an amateur cell-phone photo of a family pet.
  3. How much was used? If only a small “sample” is used – 20 seconds of a song, two lines from a poem – then the use is more likely to be fair. The user should use only what is necessary to make the point, and no more.
  4. How does the use affect the original? If the new user does something that is a substitute for the original – such as uploading five complete songs from a 10-song CD to a website – then the use will not be fair, because the new use will take away listeners (and potential buyers!) from the original.

Below on the left is a copy of the photo taken by Mr. Garcia on behalf of the A.P. Garcia doesn’t own the copyright to the image because he was a free lance photographer who gave up any rights to the image by a written contract with the A.P.. The image on the right is a copy of the poster that Shepard Fairey made based on the A.P. photo that he used without permission nor attribution.

Your task is to closely examine both images, the original copyrighted photo by A.P. and Fairey’s tribute to then Senator Obama who was running for president at the time. The original Fairey poster was printed in color on poster paper and was much larger than the original photo. After studying both images and comparing them, next look at the 4 fair use factors. Apply the facts – that is, your analysis of the “Hope” poster – and decide whether or not he transformed it enough in light of the 4 fair use factors to have created his own original copyrighted image free from infringement on the A.P. photo. How are they different and similar? Think about the tilt of the head, composition, use of color, words, symbols, shadows, and even the overall meaning of each.  Below is more factual information. One more thing, it isalleged Fairey violated the trademark rights of someone working for the Obama campaign. Can you pick out what it might be from the poster?

Fairey found the photo image of Obama when scrolling through various websites. He downloaded it and printed a copy. He then took the copy of the photo to a printing ship where he enlarged it to poster size.  He then used the enlarged print as a guide for creating the silkscreen Obama “Hope” poster. If you have ever watched the movie, Exit Thru the Gift Shop, which is about another street artist Banksy and Fairey, then you’ve seen the process he used.

In the beginning, Fairey gave the political posters away for free to various members of state Democratic Party Committees. After receiving widespread acclaim, Fairey and his wife decided to commercialize the project. He then made posters in different sizes on different paper qualities. Some he signed, numbered, and dated. Those he charged more money than posters sold on lower quality paper and unsigned or undated posters. It is not clear how much money Fairey made from selling the posters, but it is estimated to have been in the order of hundreds of thousands of dollars.

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