Fair Use and the Obama “Hope” Poster Controversy - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fair Use and the Obama “Hope” Poster Controversy

Fair Use and the Obama “Hope” Poster Controversy

During the 2008 presidential campaign, you could barely go anywhere without seeing the Obama “Hope” image on a poster, t-shirt or bumper sticker.  Since then, the iconic image has become the focus of an intense debate about fair use in copyright law.  Critics of artist Shepard Fairey’s work call it mere theft, while supporters commend Fairey for transforming a regular photograph into a symbolic image.  New Yorker art critic Peter Schjeldahl went as far as to proclaim Fairey’s design as “the most efficacious American political illustration since “Uncle Sam Wants You.”

In February 2009, the Associated Press claimed that Fairey had unlawfully used one of their images as the basis for his work.  The alleged photograph was taken for the A.P. by freelance photographer Mannie Garcia at the National Press Club in April 2006.  Fairey initially denied the allegations, claiming instead that his work was based on a picture of Barack Obama and George Clooney which was taken during the same event.  As a preemptive measure, Fairey filed a lawsuit against the A.P. asking the judge to find that his work is protected under the fair use exceptions to copyright law, which allows limited use of copyrighted material for criticism or comment.

The question of which photograph was the underlying work has implications in determining whether the poster was legally a fair use.  Factors that determine whether a derivative work is protected under the fair use exception include how much of the original work was taken and how substantially the original work was altered.  The image that the A.P. alleged was the underlying work is extremely similar to the poster, and was likely too similar to fall under the fair use exception.  Fairey’s chances of winning a fair use argument would be much greater if he used an image that required more significant alteration on his part.

In October 2009, Fairey admitted that the basis for his work was in fact the photograph that the A.P. had identified.  He said:

“While I initially believed that the photo I referenced as a different one, I discovered early on in the case that I was wrong.  In an attempt to conceal my mistake I submitted false images and deleted other things.”

At present time, the case is still pending in New York.  According to Fairey, sales of the “Hope” poster have earned approximately $800,000, all of which was donated back into the Obama campaign and various other charities.  Laurence Pulgram, an IP lawyer who formerly represented Napster in its copyright lawsuit with Metallica, said that Fairey’s lying and subsequent cover-up will make him very unsympathetic:

“This was a brain-dead move by Mr. Fairey, and it could be the turning point. His lawyers will still be able to argue that he made a ‘fair use’ under copyright law, but it’s a whole lot less likely that the court or jury will think that what he did was actually ‘fair’ if he has lied and tried to mislead the entire world about what use he made.”

The A.P. has said that it plans to donate any proceeds it obtains for past use of the photograph to charity.

The Fairey – A.P. situation has reignited the long standing debate about the fine line between an artist using influences in his or her work and blatant theft.  Henry Jenkins, a professor at the University of Southern California, called the battle between AP and Fairey “an epic struggle between the old media and new-media paradigms, a dramatization of one of the core issues of our times.”  Fairey, who has produced many controversial pieces over the years, has been accused by critics of “expropriating and recontextualizing artworks of others”.  In fact, the Obama campaign welcomed the image but never officially adopted it because of the potential copyright problems. In a recent interview Fairey showed remorse for lying, saying:

“When you’re bending the rules you need to be completely accountable and on the level and able to justify your actions.  That’s how I’ve tried to operate most of the time.  I had a recent slip up you probably know about.  That’s why I’m so mad at myself.  It undermines all the rule-breaking with integrity.”

Mannie Garcia, who took the original photograph, had an interesting take on the matter:

“I don’t condone people taking things, just because they can, off the internet.  But in this case I think it’s a very unique situation.  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.”

Fairey, who believes that artists should be able to create freely, says that he regrets that his actions distracted from the issue of fair use for artists: “Regardless of which of the two images was used, the fair use issue should be the same.”

Scott Ratner