Published: November 5, 2009

When graffiti artist-turned-regular artist Shepard Fairey was looking for an image to use on his Barack Obama campaign poster, he was clearly not expecting the backlash it would later cause. As a former counterculturalist, he was accustomed to using the work of others for his own projects without permission. However, when the poster went mainstream, he faced an unplanned dilemma.

When the Associated Press (AP) accused him of copyright infringement and demanded compensation, Fairey sued, claiming that his usage of the image fell under the “fair use” doctrine due to it having been altered from the original. However, new information has come to light, proving that he did not, in fact, alter the image, which was different than the one he originally claimed to use. This course of action betrayed the trust of his lawyers and undermined his case of fair use. Ironically, Fairey threatened to sue other artists who copied his technique. In actuality, the basis of his argument is fundamentally unsound.

The picture in question, used as the model for a painted Obama campaign poster brandishing the word “HOPE,” became widely known as the popular poster was distributed across America and became closely associated with the campaign. Fairey found a photograph online, using Google Image Search, taken by a freelance photographer, Mannie Garcia, for the AP. Seeing its striking, upward-tilted and “hopeful” head placement, he decided to paint a copy of the photo for his poster. Upon its first printing, Fairey sold 350 of the posters, with many more sales to follow. Though he claimed that the entirety of the profits went toward printing new posters and other items, this breaks a fundamental tenet of the fair use laws. Fair use protects the copyright holder of a specific media item from unauthorized reproduction and usage. In the United States, fair use reproduction is generally allowed if the image is used for “nonprofit educational purposes,” which Fairey’s poster clearly was not. Despite the fact that Fairey used all profits of the poster and related merchandise to fund the creation of more posters and related merchandise, a profit is a profit. Even if the profits were used solely to assist the Obama campaign, they are still ill-gotten gains from hijacking another person’s work. Another fair use justification, that of a “parody,” does not apply to this situation either, since the poster was created for a serious purpose and with full awareness as to its intended impact.

Mannie Garcia was the person who actually traveled to the 2006 event, where he used his photographic skill to snap the image of Obama. Why, then, should another, completely unrelated person be able to turn a profit off of this photograph without giving Garcia a smidgen of recognition? In fact, Fairey did not mention the image’s source at all. The photo was originally thought to be from Reuters, and was even celebrated as such, until the AP discovered that the photo was one of theirs. This action demonstrates that Fairey did not, in fact, want the source to be discovered, for if it were, he would owe monetary compensation. Fairey confessed to shredding documents pertaining to the actual picture and attempting to deceive the court. Instead of simply admitting his mistake, he tried to evade the law with disastrous consequences.

Fair use is an important part of the legal system—while the protection of copyright may seem harsh at times, it is needed to ensure that the creators of media are able to profit from their hard work. While basing your creations off the work of others may seem like an easy way to gain inspiration, be prepared for a backlash—and monetary compensation—if the derivative work starts to become famous or turn a profit. Sometimes it is better to create your own—whether the item in question be a photo or another type of intellectual property. If that is impossible, one should remember to ask permission.