(Let’s make this clear: Above photo by Damian Dovarganes comes from AP)
I originally wrote this for my “All Right or Some Rights Reserved?” but it quickly became it’s own post.
A famous example of accused copyright infringement is the case of the Associated Press vs Shepard Fairey. Fairey used an AP-owned photo of then Senator Obama to create his iconic “HOPE” poster. The Associated Press now wants compensation for the HOPE poster. In the AP’s view, the picture is a visual asset that they own, and they should control how it is used. Fairey disagrees, believing that he is protected under fair-use rights and that the AP has no rights to his poster.
In my opinion, Fairey used fair-use as a defense only after making some big mistakes. He admits that he originally presented false images and deleted files to conceal his actions. He would have served his case better by simply admitting that he used the photo as inspiration from the beginning. Once he knew that he was caught, he went with the fair-use defense. U.S. District Judge Alvin Hellerstein is urging The AP and Fairey to reach a settlement, but both sides have blown this out of proportion so much that both have too much to lose if they concede. I can also understand why Judge Hellerstein would be reluctant to rule for either party, because an outcome favoring either Fairey or the AP risks setting a bad precedent.
If I had a time machine, I would go back and have Fairey pay the correct fee upfront (for the license to own the image, but not redistribute that image.) If Fairey had the rights to own the photo of Senator Obama he could have used it to inspire any work he created. AP would have gotten a fee for the photo, but had no claim to the art created from the photo, because AP had could not have claimed a part in transforming a pensive photo of Senator Obama into a cultural icon. The photo alone does not have the same impact as the poster. The ability to create that impact is something that The AP can not take from Fairey no matter what the outcome of the legal case.
A couple of my sources:
http://www.huffingtonpost.com/2010/05/28/judge-urges-settlement-in_n_593861.html
http://www.ap.org/pages/about/pressreleases/pr_031109.html
http://cyberlaw.stanford.edu/case/fairey-v-associated-press
