The fight is on: AP sues Shepard Fairey.

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute I’d love to see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its background, and Obama’s suit jacket and tie to create the poster that became an iconic symbol of the presidential campaign.  I hope Fairey sticks to his guns and fights this out without settling.  I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement. And AP has been known to assert blatantly silly infringement claims.  Of course, not everybody feels the way I do.  So I’d very much like to see the matter decided, and I suspect Fairey, unlike many of the victims of copyright overclaiming, has the resources to take the case to trial and through appeal.

ADDENDUM: I am not alone in my conviction regarding the tranformative way Fairey’s poster alters the AP photograph.  Submitted to a Candid World Writes:

Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning.  The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).¹ But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.