Fair use. When it comes to fair use, there are four different categories that are discussed: the purpose and character of the use, the nature of the copyrighted work, amount and sustainability of the portion used, and the effect of the use upon the potential market for the work. Law professor Greg Lastowka says that the Supreme Court believes that every fair use trial needs to be looked at individually using these categories. The big ordeal these days is the “Hope” poster by artist Shepard Fairey. Was the photo of President Obama the poster was based off of used fairly?
In my personal opinion, I do think this case is a matter of fair use. The photograph, by AP photographer Mannie Garcia, has a copyright, but the poster is a piece of original work. If Fairey hadn’t admitted that the poster was based off of Mannie Garcia’s photo, no one would have ever known, and we wouldn’t be in this situation now. Mannie Garcia even said himself that he did not recognize the poster as his own photo. It could have been anyone’s photo, but it happened to be an AP photo. So now there is a big trial about whether or not it was fair use.
Having seen Obama so much in the spotlight with the election that just occurred, I would say that he looks very similar in every photo I’ve seen of him. Fairey could have even seen Obama in person and sketched his face out right there on the spot, or even just have taken his own photo of Obama to use as a basis for comparison. I’m not sure what Fairey’s intentions were with the poster, but it has obviously gotten very popular. Lastowka said that in one case Fairey is favored because of the fact that photojournalism is more factual. I don’t think that Garcia is being harmed by Fairey’s use of his photograph. It was merely a basis of comparison for the artist to create an original piece of work.
