It's on: AP sues designer of creepily iconic Obama poster for copyright infringement

You can thank this guy, I think, for having solved the mystery of provenance.

The AP’s always been freaky about copyright, as bloggers well know, although in their defense, there’s big money at stake here potentially.

The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees…

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”…

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street.

Funny he should mention Google Images: They were the target of another famous infringement suit on the theory that the thumbnails they generate from webpage photos violate those photos’ copyrights. They lost in district court but won on appeal, partly because the thumbnails were deemed to be sufficiently transformative of the originals as to qualify for fair use. If you want to try your hand at analyzing fair use in this case, Wikipedia lays out the four factors a court will apply. Here’s the photo and poster side by side for comparison. Fairey’s image is obviously transformative (the most important factor, per the Supreme Court’s opinion in the 2 Live Crew case), not just in color and message but in purpose, converting a banal news photo into political propaganda. The nature of the copied work is simple documentary photography of a press conference, not something fictional or highly creative. And the poster doesn’t reduce the value of the AP photo; if anything, it greatly increases it. The only factor that cuts the AP’s way is number three, the fact that Fairey swiped pretty much the whole image to make his poster — but then, that’s what Google does to make its thumbnails and everything’s copacetic with that. Verdict: Fairey wins in a walk. Rock on, “rebel” establishment hagiographer!