Reflections on the Hope Poster Case (2011)

I. INTRODUCTION In January of 2008, Shepard Fairey used photograph of Barack Obama as reference work when creating what came to be known as the Hope Poster. (1) The Associated Press (AP), the owner of the copyright in the photograph, demanded compensation from Fairey, who had used the photograph without permission. When negotiations broke down, Fairey initiated litigation, seeking declaratory judgment that he had not engaged in copyright infringement. Two years later, the parties settled the suit. The authors of this Article were involved in the litigation in various ways. Fairey was one of the principals. Meir Feder, William Fisher, Edwin Fountain, and Geoffrey Stewart were among the lawyers who represented Fairey pro bono. (2) Frank Cost and Marita Sturken served as expert witnesses for Fairey. (3) This Article sets forth the authors' thoughts about the case. Although all of the authors believe that Fairey's legal position was stronger than that of the AP, the purpose of the Article is not to defend that belief. Rather, the Article aspires to derive from the case some insights into the increasingly complex intersection of art, technology, and law. Part II lays the foundation for the analysis by summarizing the facts of the case, the history of the litigation, and the arguments advanced by the two primary parties. Part III then offers series of reflections. II. THE CASE A. Facts (4) Shepard Fairey is graphic artist. He received his formal training at the Rhode Island School of Design, where he took several courses in photography and screen printing. After graduating, he worked as screen printer, designer, and illustrator. He divided his time between graphic design projects commissioned by clients and his own art, deriving most of his income from the former. For several years, he struggled financially. In recent years, however, he has been able to support himself through his work as an artist. Today, he is part owner of three businesses that have grown out of his work: Obey Giant Art, Inc., which distributes Fairey's graphic art; Obey Giant LLC, which licenses Fairey's art for use on apparel and merchandise; and Studio Number one, commercial graphic design firm. Together, these companies have approximately fifteen employees. Much of Fairey's art has been characterized by two related traits. First, it has distinctive aesthetic, which Fairey has described as bold iconic style that is based on stylizing and idealizing images. (5) Second, since approximately 1990, much of Fairey's art has been overtly political in character. Many of his images criticize, typically through caricature, prominent politicians; others explore the power of propaganda; others celebrate musicians or counterculture figures; others advance causes, such as environmentalism or privacy protection. (6) Fairey sometimes licenses his designs to third parties. one of those licensees, OBEY Clothing, Inc., applies Fairey's artwork to sweatshirts, t-shirts, coffee mugs, and so forth. Fairey typically receives from OBEY Clothing royalty of 4.5% of the gross revenues generated through sales of those goods. The is cooperative, owned by its American newspaper and broadcast members. (7) The has approximately 3,700 employees. (8) The primary objective of the AP, in its own words, is to provide a truthful, unbiased report of the world's happenings. (9) In keeping with that broad statement of principle, the states as fundamental value that AP pictures must always tell the truth. We do not alter or digitally manipulate the content of photograph in any. way. (10) Mannie Garcia is professional photojournalist who has worked for variety of wire services. In April 2006, he was working for the AP. Through his work with wire services, Garcia has been able to acquire so-called hard credentials, which enable him to cover news events at the White House, Congress, the Pentagon, and other restricted venues. …