The Fine Art of Fair Use

Now, a year after it first appeared, Fairey’s work is at the center of a uniquely twenty-first-century copyright dispute over where the often blurry line between legitimate fair use and illegitimate infringement lies-and where it may it be headed in a world where, increasingly, one person’s content is grist for another’s creativity.

In February the Associated Press-saying that Fairey’s work closely resembled an AP photo taken by freelance photographer Mannie Garcia-contacted the artist with a demand for credit and compensation. Then, amid talks aimed at reaching a deal, Fairey struck a preemptive blow, filing suit against the AP in federal district court in Manhattan. In his suit, which sought a declaratory judgment against any potential infringement claim, Fairey offered a twofold argument. First, while admitting that he had used Garcia’s photo, Fairey said that his finished work was “dramatically different” from the original. More important, says lawyer Anthony Falzone, executive director of Stanford University’s Fair Use Project, which is representing Fairey: that Obama Hope’s purpose differed from that of the original.