Obama poster: fair use or copyright infringement?

By Eriq Gardner

A copyright claim by the Associated Press on a photograph used as source material for that iconic Barack Obama poster has raised some interesting legal issues and might be worth following in the entertainment community.

Shepard Fairey is a Los Angeles-based street artist who admits he based his image of Obama on a photograph taken by AP photographer Manny Garcia. The AP wants credit and compensation. Fairey believes the AP is entitled to none.

If the AP presses a lawsuit, it will need to show that the photograph enjoys copyright protection and had the exclusive right to make derivatives of the work, and that the poster infringes that work.

Fairey will likely claim that he added substantial elements of originality and his poster wasn't a reproduction.He will also assert a fair use defense, based on the so-called "four factors" test:

   1. the purpose and character of your use

   2. the nature of the copyrighted work

   3. the amount and substantiality of the portion taken, and

   4. the effect of the use upon the potential market. 

We've often wondered why Hollywood always seems to take extra care in licensing derivative works of things like magazine articles and board games to make extremely loose film versions of the supposed underlying material. Watching the Super Bowl ad for a new "Fast and Furious" film reminds us that the franchise has almost nothing to do with the 1998 Vibe Magazine article that served as inspiration (nor do we expect a movie version of "Candyland" to remind us much of the game we played as children). 

We bring this up because if the Fairey case does end up in court, a judge will be exploring when, news photographs enjoy copyright protection. Whether Garcia selected the pose, managed the lighting, struggled with the framing or depth of field will likely be all included in a discussion on the nature of originality and copyright entitlement. Fairey will be also arguing on how he brought his own originality to bear in transforming the original material with colors and shading.

Both sides will be also arguing over the purpose of the transformative use (political speech, which has always been afforded greater leeway in free speech analyses) and how Fairey's use of the image influenced the AP's enjoyment of its right to sell derivative works (Fairey says he's not making any money from it but others are).

As in all fair use cases, the answer could be subjective (meaning difficult to predict).