Shepard Fairey Sues the Associated Press

PHUTATORIUS
Good for him. What Fairey did with the photo was absolutely a fair use, and the AP is trying to shake him down.
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There is a larger problem here, and it has to do with the publishers' culture of trading permissions. Big Media organizations recognize the reciprocal benefits of granting permissions to one another: ESPN wants highlight footage of the Notre Dame home game on NBC; MSNBC wants to run clips of Peter Gammons's A-Roid interview. Everybody wins — including the viewer. Each network is fairly positioned to use the other's copyrighted video and rely on a fair use defense, but there's no need to take the chance. There's a free trade in permissions, so why bother with the uncertainty?

The problem comes when there's an asymmetry in the dealing — when the lowly Joe Blogger or Shepard Street Artist wants to make use of Big Media content. Joe and Shepard don't have anything to trade: an organization like the AP has nothing to gain from granting permission — and nothing to lose if it presses its rights.

And so the Associated Press can buy up truckloads of stock photos, and if by chance someone other than Ted Turner, Rupert Murdoch, or Disney should do something marketable and compelling with one of them, their lawyers will get on the phone and demand their cut. That's not unreasonable. That's how copyright law works. But the law also allows creative people to make "transformative" uses of another's copyrighted content, as Fairey did here. It helps, too, if the original work wasn't all that creative to begin with. So here: it's a straight-on headshot of a public figure. And all the better if, as is true here, the subsequent use does nothing to impair the rightsholder's existing and anticipated rights in the work. Fairey's poster does not remotely compete with the Press's licensing of stock photos of Barack Obama. It's a slam-dunk fair use.

Oh, and it's a bit rich that the AP spokesman is "disappointed by the surprise filing" of the preemptive lawsuit. All's fair in love and litigation, isn't it?

Shepard Fairey should win this case. He has good, committed lawyers and his cause is righteous. Of course, all that usually gets you only 35% of the way to victory in a copyright case in New York.