In the course of last year’s presidential campaign it was impossible to avoid an image that became irreversibly associated with Barack Obama. The work by Shepard Fairey was everywhere, distributed by the artist, the campaign, and by millions of individuals who, with Fairey’s consent, downloaded and printed the “HOPE” poster and plastered it on every available wall.
Apparently, it was impossible to avoid by everyone except the Associated Press, who seem to have just found out about it and are now seeking credit and compensation. They claim the work was derived from their copyrighted photo. In fact, Fairey admits that the photo was used as the source for his work. The question is whether it was “fair use.”
Now, there are plenty of people who would criticize Fairey for his tendency to take inspiration from the work of other artists. But in this case, the claim is beyond absurd. The derivative work was plainly an artistic representation of the original and was executed as constitutionally protected, free, political speech. And, according to Fairey, it was entirely non-commercial, with proceeds going to the Obama campaign.
This action by the AP is certain to further tarnish the reputation of the Conventional Media that is already suffering from a deficit of respect. You would have to wonder why they waited until after the campaign; after the image was globally recognized; after its inclusion in the Smithsonian’s National Portrait Gallery; for the AP to assert its claim. Are they merely hoping to benefit from the success of the image that was achieved without any effort on their part? Are they so hard-up for cash that they have taken to suing artists to keep their struggling enterprise afloat?
Surely the AP’s legal team is aware that they will have to show that they suffered financial harm in order to claim damages. That will be a hard case to make since, more likely, Fairey’s work has enhanced the value of the AP photo beyond anything they could have accomplished on their own.
But the big question here is: Why won’t anyone sue ME? I’ve been working my ass off promoting a variation on Fairey’s theme directed at John McCain. It is derivative of both Fairey’s art and a photo (of which I no longer know the source) that was probably copyrighted, so I have a double infringement liability. Fairey is already a wealthy artist whose work is published, collected, and displayed in galleries and museums. I, on the other hand, am trying to scrape up rent money and put my artwork on bus stop benches or telephone poles or anywhere else it can be seen. I need the fucking publicity!
It must be great to be AP and let somebody else, in fact, millions of somebody elses, do their work for them and then collect after the fact.