The proliferation of Shepard Fairey’s Obama “Hope” poster during the election was undeniable. It was used on buttons, posters, Facebook pages and newspapers. Any surface – whether real or computer generated – at one time seemed to contain the poster in one form or another. Fairey has acknowledged that the image is based on an Associated Press photograph taken by Manny Garcia. The AP now says it owns the copyright and is looking for compensation. (Read Here)
Fairey is arguing that it is art and is protected under “fair use.” Fair use is a loosely drawn line that allows exceptions to copyright law. The most common argument for or against copyright infringement is the idea of how much of the original was used. Read the full description at the U.S. Copyright Office (here).
A few years ago, I ran across a woman who was selling water color paintings on the street. One of her paintings was strangely familiar to me and it wasn’t until later that I realized it was an exact replica of a photograph I had taken and published in the newspaper. I point out that it was an “exact replica,” the only thing changed was the medium. I felt like something had been stolen from me and was being sold on the streets, disguised in brush strokes and colored water. I got over it, it wasn’t even really worth a second thought, but I do understand when you work hard to create something – to manifest an idea – and someone else takes all the work you put into a piece and markets it as their own.
So where does the fault lie? Fair use outlines four factors (again here):
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
I personally would argue that the Obama “Hope” poster is protected under Fair Use, but it will be interesting to see how each side argues these vague concepts. For a closer look, check out this story by Hillel Italie, an AP National Writer, (here).
Also, it’s worth taking a look at Fairey’s work aside from the copyright infringement allegations. From his Andre the Giant “Obey” posters to his recent Obama posters, he has a unique perspective on what art is and how it should be accessed. The following is a video off of YouTube.