Hope this is fair use

by Ron Coleman | February 6, 2009 9:47 am

Last week it was the O-Team[1] preparing for lighting raids on Obama-brand-equity rustlers. But maybe the Obama Administration needs to set its own White House house in order, as the AP reports that the AP is coming after President Obama[2] for its piece of icon pie. It turns out that The Image is based on, well, someone else’s image:

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.

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Yes, the question of photo-into-artwork is a longstanding and dicey one in copyright law. There is the issue of fair use, and of whether the new work is “transformative.” This particular application of the question is discussed thoughtfully here[3], here [4]and here[5].

This should be settled, though. The President really kind of has his hands full already, you know?

Originally posted on Ron Coleman’s trademark, copyright and other legal things blog, LIKELIHOOD OF CONFUSION[6].