FIL 4602 - Is There Hope for Shepard Fairey's Fair Use Claim?

The iconic poster image of Presidential candidate Barack Obama over the word HOPE, created by graffiti artist Shepard Fairey, is at the center of a court case about Fair Use.

The AP news agency has argued that Shepard Fairey infringed their rights (to make and distribute derivative works) by taking an entire copyright photograph of candidate Obama and manipulating it to create the poster image pictured above. In response, Shepard Fairey asserted the defense of Fair Use, arguing that he had not taken an entire copyright work, but only a piece of a photo.

Shepard Fairey's claim, that he had not used an entire photo (the image pictured on the left above), was crucial to his defense. Fairey said the photo he had used (while also copyright by the AP) was a wider image with another person in the frame. Fairey's claim, that he had only taken a part of the original image (not the entire photo but just a piece), was crucial because under 17 U.S.C. § 107 "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" is a key leg of the 4 part test to determine whether a use (without permission) can be "fair."

As reported in the NY Times on Oct. 17th, 2009, the case took an unexpected turn when Shepard Fairey acknowledged that he had lied about which image was the basis for his derivative work. As the case was going to trial, Fairey unexpectedly admitted that the AP claim was correct (he had taken an entire photo, not just a part of another image). In an effort to hide this fact, Shepard Fairy had destroyed evidence. Fairey's attorneys have resigned and the the hopes that a Fair Use claim might succeed have taken a huge hit.

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