AP & the Obama Poster

I have to admit that I was of split mind before I started into the articles Lisa provided for us. As an artist, I wouldn't want anyone sampling my work without permission. However, I can understand the importance of using reference works and the need to be able use them without fear of retribution.

After looking closer at the images, I noticed that artist's rendition is not a full-on copy, the angle is changed slightly. To me, this is the first indication that the poster should be considered fair use. In this case, he took a sample image of his subject and then drew his subject. He was not deliberately copying the photograph, he was taking a picture of the candidate and using that likeness to create a completely new work of art. Delving deeper, I found a quote that really summarizes my feelings here:

"Fairey's purpose of the use for the photo was political or civic, and this will certainly count in favor of the poster being a fair use [...] Nor will the poster diminish the value of the photo, if anything, it has increased the original photo's value beyond measure, another factor counting heavily in favor of fair use" (Robin Gross, http://www.msnbc.msn.com/id/29023218/).

I think that the intentions of the artist were not to infringe. He made a derivative work, it was based on the original photo, but it was not a full copy of the original photo. He used the likeness of President Obama, to which the AP has no claim. It would have been better had he used a free-license image, or had he searched out the original photographer or, in this case, the holder of the copyright, but the poster itself should not be considered as a case of infringement.