Fairey and Fair Use

The AP photo and Fairey's interpretation are compared side by side.

The AP photo and Fairey's interpretation are compared side by side.

Shepherd Fairey, the designer of the Hope and Change iconography which helped Barack Obama become elected last November, is being taken to task for his use of a photo of Obama owned by Associated Press. This has brought issues of copyright, ownership and fair use to the forefront of our news media, and is significant in light of the fact that copyright laws may be changing and Creative Commons is so widespread.

Illustrators, who often borrow from photographic references, have long been dealing with issues of fair use. How does one make a portrait of a public figure if one does not have access to take a photograph of their own or to have the person “sit” for the portrait?  If a designer or illustrator uses a copyrighted image and simply performs an editing job on it, which is what Fairey appears to have done, that may very well be construed as infringement. If the designer also profits from it, the infringement is compounded.

I believe this incident will be the impetus for tightening of copyright law and possible re-thinking of the Orphan Works Act, as well as differentiating copyright more specifically from Creative Commons uses. The lines of separation are being drawn. In a culture becoming used to and demanding common use, will rights of ownership disappear? Will intellectual property be re-defined? Will work for hire, which artists and  photographers have so long fought against, become standard practice? Depending upon how the AP/Fairey case is decided, we may be on the slippery slope of changes we don’t want.

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