March 3, 2009
Shepard Fairey poses with his Obama artwork. (Damian Dovarganes/Courtesy The Associated Press)

Shepard Fairey poses with his Obama artwork. (Damian Dovarganes/Courtesy The Associated Press)

First Amendment Challenge: Who Owns Obama’s Image?

A legal dispute over a famed poster of then-senator Barack Obama goes to the heart of a very modern-era debate over what is "fair use" of images that are readily available on the Internet.

Artist Shepard Fairey developed a poster of Obama that was widely used during the 2008 presidential campaign that was based on what most agree was a photograph taken in 2006 by an Associated Press freelance photographer. Fairey said he found the image during a Google search.

Fairey and Obey Giant Art, Inc. — owned by the artist and his wife, Amanda — sued the AP earlier this month, asking a federal court to protect him from copyright claims being raised by the news organization. The dispute revolves around a complex part of copyright law called "fair use" and whether Fairey’s artistic work was "derivative" or "transformative."

If the artwork is deemed "derivative," a court might conclude that Fairey owes money to the AP (which asserts that it owns the photo) or to the freelancer. The argument: The photo, showing Obama with his head slightly tilted upward and looking out, is the exact angle and image in the freelancer’s photo. Sure, Fairey added colors and replaced the original Stars and Stripes flag background, but the image is essentially Obama as shown in the photo.

If the artwork is deemed "transformative," a court might conclude it falls under "fair use" and is protected under copyright law. The argument: The artwork goes far beyond the photo by means of artistic efforts — color, shading, etc. As such, it meets conditions of copyright exemption — that is, only a portion of the original image was used, and the poster and stickers that Fairey produced were used differently than the use of the original photo.

In some ways, the dispute echoes an issue raised in the 1960s by artistic works produced by pop-era artist Andy Warhol that were based on the iconic Campbell’s soup red-and-white can. No lawsuit was filed in that instance.

For information on other First Amendment issues, please visit www.firstamendmentcenter.org and the Newseum’s Cox Enterprises First Amendment Gallery.

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