A professional photographer named Mannie Garcia shot a photo of candidate Obama. Garcia says he thus owns the copyright in the photo. The AP disagrees; it says:
Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.If the AP is correct about Garcia's employment status (and I have no idea if it's right or wrong), then AP is indeed the copyright owner, under the work for hire doctrine.
Then, artist Fairey took the Garcia photo and made it into the now famous poster.
One question is whether the photo itself is protected by copyright. I think the answer is clearly "yes"; photographs have copyrightable since President Abraham Lincoln signed a law so providing. See Act of March 3, 1865, 13 Stat. 540; see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Ets-Hokin v. SKYY Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000).
Next, a tougher question: did Fairey copy the protectible elements of the photograph, or merely the unprotectible underlying facts/reality (i.e., the fact that Obama was sitting at a certain place with his head cocked at a certain angle at the moment Garcia pushed the button on his camera)? I think this is a very hard issue, and I'm not prepared to hazard an opinion yet. A follow-on opinion to the Ets-Hokin decision noted above suggests that in such cases, the copyright in the photograph may be "thin," and that anything other than "virtually identical copying" (which is not what Fairey did) is permitted.
Finally, let's assume that Fairey did copy (i.e., make a derivative work of protectable elements). The question will then become whether he has a valid fair use defense. To run through the most relevant factors: I think Fairey's work is transformative, which helps him. But at least in certain respects it's very, very commercial (posters for $45! t-shirts $25! stickers 50 cents! signed prints $500!), to which a court could very well say, "Mr. Fairey, please take out your checkbook." Fairey appears to have used a large portion of the photo, and this appears to be a use that the AP (assuming it is the copyright owner) would normally charge for, and thus the use would deprive the AP of a license fee that it is entitled to -- which undermines a fair use defense. Carolyn Wright's excellent Photo Attorney blog weighs the factors and concludes that Fairey's use was probably not fair. Predictions in this area are tough, but I tend to agree with Wright. How much would I bet on the ultimate outcome? About the price of a Fairey Obama sticker.
Fairey is represented by Anthony Falzone of Stanford's Fair Use Project, who says that he's been in talks with the AP to resolve the matter. Falzone is a passionate fair use advocate and, from what I know, a skilled attorney, but that doesn't necessarily mean he always prevails; he came out the losing side of the Harry Potter Lexicon decision (on the winning side was my former employer).
Who owns the copyright in the photo is crucial here. If it's Garcia, Fairey probably doesn't have much to worry about, as he says he doesn't mind the poster; if it's the AP, litigation may ensue. This is a fascinating case, and I have no confidence at all in predicting how it will come out. I'll be watching.
(Informative interview with Garcia here. And lots of very interesting coverage and commentary from the Boston Globe's Dan Wasserman here and here.)