More Than Fair Use of Shepard Fairey’s Obama HOPE Poster

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I just listened to Terry Gross’ interview with both Shepard Fairey and the photographer (an AP stringer, Mannie Garcia) that took the photo that Shepard used to make his Obama HOPE poster. The situation is getting pretty interesting. The AP demanded Shepard pay for his use of the photo, Shepard agreed but when the AP demanded royalties PLUS damages. Shepard instead decided to file a preemptive lawsuit, claiming he used the photo under the copyright Fair Use Act. On the other side, Mannie Garcia is also having a legal battle with the AP over who holds the original copyright, and therefor who is allowed to profit from it.

My opinion is conflicted, because although my selfish initial reaction is that the rights of the photographer should be protected no matter what, I really think that Shepard has a strong case, for the following reasons:

  1. He digitally modified the photo and then hand drew the poster.
  2. He took all of the proceeds from the poster and put them into the Obama campaign and making more posters, which questions whether or not it was a commercial application.
  3. He changed the INTENT of the photo. The original photo was news coverage of a press event with George Clooney about Darfur, Shepard clearly was making a bigger political statement.
  4. But most importantly, he didn’t diminish the value of the photo. In fact, the absolute opposite: the National Portrait Gallery asked to hang the original Mannie Garcia/AP photo (next to Shepard’s poster, already hanging), and according to the interview, the Danziger Projects gallery in NYC is selling signed prints for a “handsome sum.” (I tried finding out how much, but couldn’t.)

If it wasn’t for Shepard, that photo would’ve been just like thousands of others, and fallen into obscurity. If anything, I think Mannie should be sending Shepard one hell of a gift basket.

It’s a pretty interesting interview if you have any interest in this situation. The interview was on Feb 27th. Listen to the interview on NPR.org or scroll down a little at learnoutloud.com.

P.S. Terry interviewed Shepard on Inauguration Day, which is a great interview too, but I can only find that one on iTunes.


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Mathieu Young
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