Obama poster not breaking copyright laws

President Barack Obama's thoughtful expression and tilted head, colored in shades of red, white and blue, appeared above the word "hope" in an iconic poster that became an unofficial insignia of the Obama campaign about a year ago.

Today, this piece of art is under scrutiny as a court attempts to determine if it violates copyright laws or is protected under the doctrine of fair use.

According to a New York Times article, the issue began when the Associated Press determined it owned the photograph the artwork was based on, which had been taken at the National Press Club in April 2006 by AP freelance photographer Mannie Garcia, and therefore was entitled to a portion of any of the profits it had made. In response, Shepard Fairey, who is responsible for manipulating the photo, filed a lawsuit against the AP on the grounds that his work did not constitute copyright infringement.

In the textbook "Mass Media Law," author Don Pember states that in order for someone to be found guilty of copyright infringement, "there must be more than minor similarities between the two works; they must be substantially similar."

This idea of being "substantially similar" is determined in two ways by the court.

"The courts will first ask whether the general idea or general theme of the works is the same. If the general idea of the two works is not similar, there is no infringement … But if the general idea is substantially similar, then the court looks at how the idea is expressed, how the theme is carried out," Pember wrote.

Based on these criteria, I see no way in which Fairey's work can be deemed copyright infringement by the court. In the suit filed by Fairey and his attorneys, the artist is described as having used Garcia's photo for reference, but that "Fairey transformed the literal depiction contained in the Garcia photograph into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph … While the evident purpose of the Garcia photograph is to document the events that took place at the National Press Club that day in April 2006, the evident purpose of both the 'Obama Progress' and 'Obama Hope' posters is to inspire, convince and convey the power of Obama's ideals, as well as his potential as a leader, through graphic metaphor."

The above description of Fairey's reimagining of the photograph and the completely different motivation and message behind it should be a clear indication that no copyright infringement took place.

It's also important to note that copyright laws exist in order to protect original and creative works and it is difficult to categorize Garcia's photo as such. The photo captures a generic moment in time where Obama sits listening to a speaker with his head tilted. This gesture is characteristic of the president and was in no way created by the photographer - nor was the lighting. He merely snapped a photo that anyone else in the room could have easily taken. It is merely a standard shot of the president with little to no creative value. This is perhaps the reason Fairey chose to work with it - because it was so basic.

In addition to the fact that Fairey's work is not "substantially similar" to the original photograph and that Garcia's photo is not distinct enough to warrant the application of strict copyright laws, there is a third issue that has arisen that could push the outcome of this case in Fairey's favor. Garcia claimed he, not the AP, owns the rights to the photograph because he was not under contract with them at the time it was shot. The New York Times reported that "[Garcia] was very happy when he found out that his photo was the source of the poster image, and that he still is."

"I don't condone people taking things, just because they can, off the Internet," Mr. Garcia said in the Times article. "But in this case, I think it's a very unique situation."

All the evidence given is enough for Fairey to easily walk out of court with full ownership of his famous poster and for the AP to rethink how they approach similar cases in the future. Fairey is an artist and what he did was not copy the work of another but reimagine it, transform it and deliver it to the public with a message of the hope that Obama instilled in him and many others across the nation.

To see a collection of Fairey's work, visit the Warhol Museum where a 20-year retrospective, titled "Shepard Fairey: Supply and Demand," will be on display until Jan. 31, 2010.