Copyright Infringement on Obama Image?

Copyright infringement is always a weighty issue when it comes to art, and the art created during the recent presidential campaign is no exception. The Associated Press is claiming it owns the rights to the photo that artist Shepard Fairey used to create his ubiquitous image of President Barack Obama (Obama Hope) throughout the presidential campaign—and seeks credit and compensation for Fairey’s use of it without permission. Fairey maintains that he did nothing illegal in using someone’s image—a photographer who snapped the image while on assignment for the AP—to create his work.

What do you think: fair use or copyright infringement?

Click here to listen to the story from NPR.

Update (Feb. 9, 2009): Fairey was in the news again Friday night. The artist was arrested for tagging property in Boston with his street art. Click here for details.

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2 thoughts on “Copyright Infringement on Obama Image?

  1. Gary Arseneau

    If the California artist Shepard Fairey is a painter and his paintings are being reproduced and sold for $100 or more in the State of California, is he disclosing them as -reproductions-?

    Under California Civil Code 1738 to 1745, if you sell a reproduction for $100 or more, you must disclose it as a reproduction. Failure to do so, includes but not limited to: refund, interest, treble damage and $1,000 per occurrence.

    Additionally, under U.S. Copyright Law 106a the Right of Attribution shall not apply to any reproduction. In other words, the printer of the reproductions own the rights to those derivatives he reproduced and would only be contractually obligated to give the artist what he contracted for. The artist paid for 1,000, he gets a 1,000. So, unless Shepard Fairey got the reproductions right reassigned back in writing from the printer, the printer could reproduced more without the knowledge or permission of the artist Shepard Fairey.

    There goes the so-called limited edition.

    That’s of course assuming you believe there is such a thing for reproductions because under U.S. Copyright Law 101 works of visual art are considered limited if signed and numbered by the author ie., artist but it does not say anything about reproductions.

    Now of course Shepard Fairey might have realized these contentious issues upfront and got the reproductions rights reassigned from any printer first before agreeing to a deal. Of course that would be an admission that he knew they were reproductions from the very beginning.

    Is Shepard Fairey disclosing them as such?

    So, whether photographer Mannie Garcia retained his copyright to his photograph or AP does, Shepard Fairey does not deny he plagiarized the image without proper attribution.

    Therefore, Shepard Fairey may be actually guilty of theft by deception and all the monetary damages that go with it.

    In closing, on his website, Shepard Fairey writes: “I was broke throughout my twenties but I wanted to collect art, so I’m trying to provide that for people now.” In other words, Shepard Fairey may have been broke in his twenties but if he is selling non-disclosed reproductions of plagiarized work, is he ethically and legally bankrupt now?

    Gary Arseneau
    artist , creator of original lithographs & scholar
    Fernandina Beach, Florida


  2. cindy jarm

    as far as I know if it is not your picture you are using or if you do not get permission to use it as a model figure, it is copyright infringement. Always wondered about the rules but that is what I learned a while back.
    I do think that the use being a President, a public figure, might end up out of that realm