Artist Shepard Fairey, who created the “Hope” poster of now President Obama, has filed a pre-emptive law suit against the Associated Press. The suit, which has been filed in United States District Court in New York, seeks a declaratory judgement for Fairey ruling that the poster is protected by fair use and does not infringe AP’s copyright in the photograph. The suit also seeks an injunction preventing AP from asserting its copyright in the photograph against Fairey.

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Faireys poster

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Fairey's poster

So, how does Fairey’s claim measure up against the four factors considered in fair use arguments?

First, is the poster sufficiently transformative of the original photograph for Fairey’s claim to be successful? In other words, what was the purpose and nature of Fairey’s use of the photograph? If President Obama’s pose and expression are taken out of the calculation, how transformative is the poster image? Those questions are hard to answer, but I think may be in Fairey’s favor.

Second, the nature of the photograph itself must be considered. Although copying factual works is given more latitude (because dissemination of factual works benefit the public), it’s not clear how to apply this argument to a photograph. However, as AP has already published the photograph, Fairey’s case for fair use is stronger, as the author of the work has already controlled its first public appearance.

Third, the more of the work taken, the less likely a fair use claim will succeed. The entirety of the original work was indeed used for the poster, which is in the AP’s favor.

Finally, the effect of the use on the potential market for the original work also needs to be considered. Here, I think the argument is in Fairey’s favor, as the market for the campaign poster is unlikely to encroach on the market for the original image, nor is it likely that the poster image caused AP to lose income in the photographic image. If anything, the now ubiquitous poster probably enhances the market for the original image.

It’s interesting to note that the Obama campaign never officially adopted the poster, due to–that’s right–copyright concerns.