Mannie Garcia/ Shepard Fairey
One of the original 350 iconic “Hope” portraits of America’s 44th President by artist Shepard Fairey hangs in The National Gallery in Washington. D.C., and another recently sold at a charity auction for more than $200,000. But the portrait is also generating some controversy.
A segment on NFR’s All Things Considered on 5 February 2009 notes:
The Associated Press is alleging copyright infringement for an image of Barack Obama created by street artist Shepard Fairey. Fairey’s lawyers say the image is protected under fair-use provisions.
Margaret Esquenet, an intellectual-property lawyer with Finnegan, Henderson, Farabow, Garrett & Dunner, a Washington, D.C., law firm, says several factors must be examined in the fair-use defense.
“The artist here would have a good argument that the photograph is factual; it’s of a real person at a real event in a news context,” Esquenet tells NPR’s Melissa Block. “It doesn’t appear that the photographer spent time posing or arranging the lighting or arranging the background … that would give it the creative elements that you’d normally see for a photograph.”