Published: November 5, 2009

About a year ago, President Barack Obama was well into the heat of the 2008 presidential electoral race. At this same time, Shepard Fairey, who was among the majority of the U.S. population that had exuberated praise for the candidate, began working on a simplified and stenciled propaganda poster that would later become an icon as patriotic as the “Uncle Sam Wants You” poster and as overused as the Che Guevara and John Lennon posters available at every touristy stop along Broadway.

However, this poster also gained notoriety as it became the controversial subject of a fair use case when it was discovered that the poster actually used an Associated Press (AP) photograph that had been taken during a Darfur awareness event in 2006. Since the original accusations, Fairey has had quite the rollercoaster ride of a defense, as he admitted to lying about and fabricating some of the information regarding which photo was actually used. However, one thing remains standing tall in the case: Fairey’s consistent claim that, although the AP says he didn’t have copyrighted permission to use the photograph, he still believes that his actions fell under the fair use doctrine of copyright law. Is the poster a plagiarized photo or a conceptualized art piece?

Fairey’s idea had originally been to promote his choice of candidate. Like many people in America, Fairey had strong admiration for Obama as a possible president. Obama came to stand for something more than just himself, and Fairey saw that he could create a piece of art to convey this point. For many people, Obama was seen as a messianic figure that was on a quest to rejuvenate the degenerated country that had been drained out in the past eight years. Obama was seen as a man who promoted mobilization toward change and hope. Fairey would later use the words “hope” and “change” on the poster that would become an iconic force behind Obama’s campaign.

Fairey made a huge impact with his poster, but his ideas were not that revolutionary. It is often the case that an artist will take a common cultural phenomenon and make a comment on it through artwork. In many cases, this comment is made within the political realm, where a strong opinion is made about a particularly influential figure. In many cases, the reality of the work is conserved by adding in the use of a photograph. In the 1960s, Andy Warhol wished to make a statement about celebrity and stardom after the suicide of Marilyn Monroe, so he created a silkscreen print of a publicity photo from her 1953 film, “Niagara.”

Fairey—and Warhol, for that matter—never made an attempt to use these photographs for any other purpose than art. Fairey was not copying the photograph. He was using the photograph as a means to make an artistic and political statement. In the language of the fair use doctrine, Fairey was using the photograph for “criticism and comment,” in which he used the AP photograph and made it a new piece with the use of a red, white and blue color palette and the typographical icons of “hope” and “change.”

It is concerning how many artists do this every day, yet they are never accused of any type of fraud because what they do isn’t offensive. However, when an artist becomes engulfed in fame with a monetary result, all the money-hungry leeches come to get their two cents.

It is extremely ironic that this accusation would even be considered against Fairey. The poster claims that our country is moving in a more liberal and open-minded setting, yet we still struggle to allow an artist to express his or her feelings. Most of America agrees that change is the answer, but we find ourselves in an archaic period of thought.