Change we can believe in?

A heated legal battle is underway about the most famous image of the 2008 Presidential campaign: the Barack Obama "Hope" poster designed by artist Shepard Fairey. Here's my video explanation of the case.

Fairey admits he based his poster on an Associated Press photograph, but when the AP sought a license (and money), Fairey went to court, asking a judge to rule that his use was legal under copyright law. The AP then sued, claiming his use is a violation of that law.

Who's right? To simplify matters a bit, the case turns on how much Fairey's poster transforms the AP photo. If it's a transformative use, Fairey has a stronger argument that it's a "fair use" under federal copyright law than if he didn't alter the photo much to make the poster. In court papers, Fairey's lawyers say the poster is a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph." The AP begs to differ: it says the poster "cop[ies] all the distinctive and unequivocally recognizable elements of the Obama Photo in their entire detail, retaining the heart and essence of the AP's photo."

Will this case settle anytime soon? Intellectual property experts tell me they doubt it. For one thing, the parties are well lawyered: Fairey is represented by the Stanford Law School Center for Internet and Society;the AP, by Kirkland & Ellis, a major firm.

In the course of reporting my Nightly News spot I had the opportunity to talk with Prof. Rebecca Tushnet. Rebecca teaches at Georgetown Law and has a fantastic blog on intellectual property.