The poster image on the right is one that captured so many imaginations during the presidential election campaign last year and through the inauguration last month.
It became the avatar of choice for many, the Obama icon, with its brave word â€˜Hopeâ€™ as well as its word variants such as â€˜Progressâ€™ and â€˜Change.â€™ It inspired thousands of image variants as people also created their own likenesses in a similar style (I did that, too).
The source for Faireyâ€™s inspiration has now become clear, and it has opened up what could become a complex (and costly) legal issue surrounding copyright and fair use.
According to a report from the Associated Press, Faireyâ€™s poster is based on an AP photograph taken in April 2006 by photographer Manny Garcia on assignment for the AP at the National Press Club in Washington.
Garcia makes it clear on his website that he took the original photo.
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees, says the AP, claiming rights under fair use custom as per US copyright law.
The AP makes a strong argument for credit and compensation.
On buttons, posters and Web sites, the image was everywhere during last year’s presidential campaign: A pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE.
Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.
Iâ€™m no lawyer but results like that look like they go way beyond what you could reasonably understand â€˜fair useâ€™ to mean. The lawyers are surely going to have a field day.
Expect this story to grow into a full-blown kerfuffle if no agreement is reached soon.
Related â€“ the kerfuffle last summer over the APâ€™s attempts to enforce a â€œpay-as-you-quoteâ€ system for using any AP-distributed content on your website or blog.
(Also related: our FIR Interview with Media Bloggers Association president Robert Cox last July on the mediating role the association played to help resolve that issue.)
They didnâ€™t have a lot of sympathy at the time in the blogosphere (nor in some mainstream media quarters) for their aggressive approach. Iâ€™d say they might gain some sympathy this time, depending on how they go about it.
Kid gloves, AP, not ham fists.
[Update Jan 12, 2011:] In a press release issued today, the AP says they and Shepard Fairley have reached an agreement to settle their pending copyright infringement lawsuit over rights in the Obama Hope poster and related merchandise.
[…] In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.