The Obama Image



Obama Hope Image Subject of Fair Use Lawsuit


No, I’m not going off-topic again; I’ve gotten over it.

We’ve all seen the image of President Obama, and by now we all know where that image came from — a photo taken by AP photographer Mannie Garcia in 2006, munged into the Hope poster by Shepard Fairey and used throughout the Obama campaign.

17 USC 107 controls fair use under the copyright law of the US. Was the use of the AP picture in the Hope poster fair use under the law? That’s what the US District Court for the Southern District of New York (SDNY) has been asked to determine. The AP has sued Fairey in the copyright court — the SDNY, sitting in New York City is in the heart of the publishing industry, the SDNY has a lot of copyright jurisprudence to guide it in making such a decision.

Fair use is a gray area of the law, at best. The statute, ever so helpfully, gives us a test that can be applied to questions of fair use, but at the end of the day it’s the judge’s sense of justice that determines the outcome of the case.

It will be interesting to see where this case goes. The Hope poster is political speech, probably the most protected speech under the First Amendment; the image, though, is clearly a derivative work of the AP photo.

Who will win? Who can tell?