faireybig4

By Justin Silverman

Shepard Fairey of Andre the Giant “Obey” sticker fame is filing suit against the Associated Press, looking to clear his name after the news syndicate accused him of unfairly using copyrighted work as the basis for his popular Obama campaign poster, (see images on left). 

Fairey will not doubt argue that the Fair Use Doctrine applies here and protects his work from any claim of copyright infringement. Generally, the doctrine allows the public to use copyrighted work so long as it is for criticism, comment, news reporting, teaching, scholarship or research. Fair Use allows a blog such as this one to post images of photos and artwork without infringing upon their copyrights. The doctrine also protects artists who take a copyrighted product and transform it into something new and different, as Fairey will surely argue. 

When determining whether Fair Use applies, courts consider (1) the purpose and character of the use, including whether such use is commercial or non-profit, (2) the nature of the copyrighted work, (3) the amount of the original work used in relation to the new product and (4) the effect of the use upon the potential market for or value of the copyrighted work. 

The purpose of Fairey’s artwork appears to be, at least partly, political. Though he is selling copies of his painting, its political nature should help his Fair Use claim. And though similarities exist between the Associated Press photo and the artwork, the latter seems a distinct and separate body of work that if anything will make the photo more valuable not less. When considered in the context of Fair Use, the AP’s claims against Fairey’s use seem to be without merit.

Also read analysis by Dan Kennedy.