Fairey Admits Obama Hope Poster Based on AP Photo

Stephen Fairey, the author behind the iconic “HOPE” poster that symbolized Barack Obama during much of the campaign and since, now admits it was based on an AP photo.

obama-poster-AP-photo-wideOn Friday night, Fairey’s attorneys — led by Anthony Falzone, executive director of the Fair Use Project at Stanford University — said they intend to withdraw from the case and said the artist had misled them by fabricating information and destroying other material.

Fairey admitted that he didn’t use The Associated Press’ photo of Obama seated next to actor George Clooney he originally said his work was based on — which he claimed would have been covered under ”fair use,” the legal claim that copyrighted work can be used without having to pay for it. Instead he used a picture the news organization has claimed was his source — a solo picture of the future president seemingly closer to the iconic red, white and blue image of Obama, underlined with the caption ”HOPE.” Fairey said that he tried to cover up his error by submitting false images and deleting others.

The distinction is critical because fair use can sometimes be determined by how much of an original image or work was altered in the creation of a new work. If Fairey didn’t need to significantly alter the image he used — in this case the solo shot of Obama — then his claim could have been undermined. Fair use cases also may consider the market value of the copyrighted material and the intended use of the newly created work.

Laurence Pulgram, an intellectual property lawyer who represented Napster in a copyright fight with the rock band Metallica, said Saturday that Fairey’s case was in trouble. ”This was a brain-dead move by Mr. Fairey, and it could be the turning point. His lawyers will still be able to argue that he made a ‘fair use’ under copyright law, but it’s a whole lot less likely that the court or jury will think that what he did was actually ‘fair’ if he has lied and tried to mislead the entire world about what use he made,” Pulgram said.

Leaving aside that Fairey is a liar and an idiot, his usage nonetheless strikes me as obvious Fair Use.   Yes, his venture was commercial rather than educational, making it complicated. But his work is extraordinarily transformative.

Beyond that, while I understand that photos tend to be accorded greater protection than, say, news stories, there ought be much greater latitude in the use of photos of ubiquitous public figures like Obama.   There are tens of thousands of widely-available press photos of the man.  It’s rather difficult to argue that Fairey’s transformation of one of them into a poster somehow limits the future use of that photo.  Indeed, this photo would likely have disappeared into the ether along with virtually ever other AP pool photo were it not for it having been rendered iconic.

FILED UNDER: Law and the Courts, Media
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    Leaving aside that Pulgram is a liar and an idiot, his usage nonetheless strikes me as obvious Fair Use. Yes, his venture was commercial rather than educational, making it complicated. But his work is extraordinarily transformative.

    I’m not sure Fair Use would be the technical term, but I agree that if our system gives any kind of ownership to the photographer, then our system is deeply flawed.

    IANAL, but the way I’d say it is that the art is clearly a “new work.”

  2. Zara says:

    I think you meant to write “Fairey is a liar and an idiot,” not Pulgram. At least I hope so, as poor Mr. Pulgram hardly seems to merit such harsh words.

    Indeed — just a matter of looking up and referencing the wrong name. Error corrected. – jhj

  3. Bob says:

    Considering the DNC and Obama’s people were smart enough to have a new poster commissioned that was based on a new photo, you would think Farley would know to do the same.