Is the Obama Poster a Copyright Violation?
From the AP:
Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.
The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.
Fairey’s Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.
To the extent that some elements of the photo are duplicated in the poster, it isn’t clear that Obama’s facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?
Moreover, the poster might constitute fair use. The fair use factors include:
1. the purpose and character of the 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
The poster isn’t a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.
But copyright law is suffering from a bit of delirium these days, so it’s hard to know what’s up or down or fair use anymore. Thus, I’ll throw this out to the intellectual property experts. Copyright violation? Fair use?
Image Credit: AP Photo by Manny Garcia and poster by Shepard Fairey. From Brietbart.com