Hope Poster Battle Heats Up

The battle between artist Shepard Fairey and the Associated Press over the origins of the Obama "Hope" poster continues to escalate -- but has the essential legal issue changed?

To recap, the AP and Fairey sued each other early this year, soon after the Presidential election that pushed the "Hope" poster into prominence. At issue: whether the Hope poster infringed AP's copyright in a photograph of Obama. Last week, Fairey admitted that the poster was based on a different AP photo than the one he originally insisted was his inspiration. When you see the two photos, you can understand why AP's team was skeptical of Fairey's original claim. The AP has submitted new court papers with expanded claims, and rumors have surfaced that Fairey's lawyers might (predictably; after all their client lied) withdraw from the case.

The AP argues that Fairey's lie legally matters. That's because the source photograph Fairey now admits he used is much closer to the poster image than the one he originally cited. Legally, the less transformation a copyrighted work (like a photograph) undergoes to make a new work (like a poster), the less likely that the new work qualifies for protection as a "fair use" -- the provision of copyright law that allows certain uses of copyrighted material without permission.

While copyright lawyers have been chewing over this case for months, holding symposia and burning up the blogosphere with their opinions about the case, one expert tells me this case is simple, and is enjoying undeserved attention because of the notoriety of the poster (and Fairey's brazen behavior). He points to a squabble in the 1990s when artist Jeff Koons incorporated a photograph of puppies into a sculpture called -- "String of Puppies." When the photographer sued, Koons claimed fair use -- and lost in court, twice. The sculpture, the courts held, simply didn't transform the photograph enough to make it a fair use. (You can see the photo and sculpture here and read more about the decision, which has become a touchstone for art law, here. So -- perhaps we should pay no attention to the activity surrounding the poster. The legal question may be this simple: as simple as: is turning a photograph into a poster enough to make it legal?