Is Shepard Fairey in the business of infringing copyrights or creating new transformative works?

That is a hard question to answer and I am not sure it can be answered in this brief blog post.  It is a question a judge will be answering at some point in the future in the Fairey v. The Associated Press complaint for Declaratory Judgment Injunctive Relief filed in the Southern District of New York case number 09CIV01123. 

The general facts are this:  Visual artist Shepard Fairey created what has become known as the "Hope Obamacon." Fairy used a picture of President Obama and created an abstracted graphic rendition of President Obama gazing up and to the viewer’s right, colored in a palette of red, white, and blue with the word HOPE.  The photo that is the basis of Fairey's work was taken by an AP freelance photographer, Mannie Garcia.

AP claims they own the copyright in the photo, Mr. Garcia claims he owns the copyright in the photo, and Fairey is claiming there has been either 1) no infringement; or 2) there has been infringement but he has a valid defense based upon "fair use" ...  a transformation from the photo to the final product.

Professor Raymond Nimmer states  "Some courts mistakenly view transformative use as merely using a work in a way different from that which the copyright owner currently does. The true meaning is that transformative use is a use that transforms portions of the original into an entirely new work that does not simply supersede the original in a market or use to which the original may not yet have been applied."

The U.S. Supreme Court held in Campbell v. Acuff Rose Music, Inc. (the “Pretty Woman” case)  "The central purpose … is to see … whether the new work merely “supersede[s] the … original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”"

Does the new image comment on the existing work or simply borrow from the existing?  How much is too much to take?  Is something new added?  Is the character of the existing work altered? These are all questions for the judge.

There has already been a lot written on the case.  Links below provide a recent history and a variety of opinions on the possible outcome.

AP alleges copyright infringement of Obama image

 

Shepard Fairey Interviewed By Charlie Rose

 

FUP Files Suit Against The Associated Press On Behalf Of "Obama Hope" Artist Shepard Fairey (with link to compliant)

 

AP Statement on Shepard Fairey Lawsuit

 

NY Times Artist Sues The A.P. Over Obama Image

 

Why did Fairey file in the Southern District of New York?

 

Does AP actually own the copyright in the Garcia photo?

 

Is Fairey’s suit doomed to fail before it even gets off the ground?

 AP, Shepard Fairey and a thing called the Obama HOPE poster   

Is Anything In Shepard Fairey's Image Actually Copyrightable By The AP?

 

NPR Law Professor Weighs In On 'Hope' Squabble

 

NPR Shepard Fairey: Inspiration Or Infringement?

 

NPR Mannie Garcia: The Photo That Sparked 'Hope' 

 

Crowd-sourcing a "fair use" case

 

"Hope" Leads to Despair... and a Fair Use Dispute

 

Glaser v. Shepard

 

Obama Artist Sues AP Over Copyright Fair Use

 Shepard Fairey Character Approved USA Network Video   

The AP Has No Case Against Shepard Fairey