Shepard Fairey is a street artist from Los Angeles. In early 2008, he designed what was to become one of the most famous visual icons of the Barack Obama political campaign. It is a strong design, with Barack Obama looking into the future, coloured red and blue to represent Republican and Democrat states. The word Hope is featured in a heavy type face. Fairley’s design is a stylised reconstruction of a photography owned by Associated Press (from here on referred to as AP), who sued Fairley for copyrights infringement, to collect credit and compensation. The original photography was taken by Manny Garcia on assignment for AP in 2006.

AGDA’s Code of Ethics states in §4.3 that “A Member shall not, under instruction from a client or independently, plagiarise work or knowingly breach copyright.” Fairley sourced his reference photo from Google’s image search service, and was aware that it was an AP owned picture. Is this a clear breach of AP’s rights?

One reason why this is a tricky case is vague laws. There is an exception to the copyright law, called the good faith fair use defense, which allows restricted use of copyrighted material for the sake of comment or criticism. It “only applies if the person who copied material reasonably believed that what he or she did was a fair use.” This sounds like an easy defense to claim, but a hard one to judge.

Since this is a U.S. court case, it is fair to compare it to other U.S. cases. In 1992, an artist referenced a black and white photo to produce a sculpture. It was a picture of a man and a woman, with their arms full of puppies. The sculptor recreated the scene as a three-dimensional model, which sold at high price. He was sued for copyright infringement, and lost the case. The court found that the sculpture had “substantial similarity” to the original photo, and the artist’s attempt to claim fair use by parody failed.

The Rogers v. Koons case is similar to the AP v. Fairley case in several ways. The original work was transferred to a new discipline, and reconstructed in high detail, and presented as the designer’s own creative effort. There is one important aspect where they differ, though. Jeff Koons’ sculpture sold for USD$300,000, while Fairley says, “I just put all that money back into making more stuff, so I didn’t keep any of the Obama money.”

Either way, it looks like the problem somewhat solved itself. The photographer, Manny Garcia, claims he, not AP, owns the copyright for his image, according to his contract at the time. “I don’t condone people taking things, just because they can, off the Internet,” Garcia said to the New York Times in February. “But in this case I think it’s a very unique situation.” He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”