Shepard Fairey's Barack Obama Poster: Copyright Infringement and The Fair Use Doctrine
I'm sure you noticed this artistic image of Barack Obama during the 2008 Presidential Election. Street artist, Shepard Fairey, created it and based the work on an Associated Press photo found on Google Image. Now, AP claims that the artist copied their photo without the "required permission." Is this an example of copyright infringement? For now, the parties' attorneys are not disclosing much information; however Fairey's lawyer has brought mentioned the doctrine of fair use.
Fair use is a legal defense to avoid copyright infringement liability. It is not an exact rule; rather, it weighs various factors: the purpose and character of the use, the nature of the work that was copied, the amount the copyrighted work was copied, and the effect of the new work on potential markets for the copyrighted work.
Fairey's poster features a portrait of Barack Obama looking into the distance and splashed in red, white, and blue. At the bottom is an underlined word reading, "HOPE." Fairey said he made the picture specifically for the campaign after being requested to do so. However, the Obama campaign was hesitant about using an image to which they did not own the rights. Although the image was never officially used by the Presidential campaign, supporters distributed copies of the popular image at rallies and posted it on their websites
Now that the election is over, Fairey's work will be displayed in an art exhibit at the Institute of Contemporary Art in Boston as well as an exhibit at the National Portrait Gallery in Washington. The work is also being published in various books pertaining to the 2008 Election.
If you are an artist and wish to create a piece of artwork based on previous work, you may want to first consider getting authorization from the original owners. You can be sure that the details will be negotiated. Our law firm not only does trademark registration, but also negotiates licensing deals, drafts cease & desist letters, and is well-equipped to litigate a dispute. If you need assistance in these matters, contact us.
