Is Fairey’s use of the Obama image copyright infringement or fair use?

Shepard Fairey, creator of the iconic Obama image, continues to garner attention in the media. In this case, however, he may be wishing the spotlight were shining on someone else. Yahoo! News reported yesterday that The Associated Press is upset with Fairey’s use of an AP photographer’s image of Obama and is claiming copyright infringement. Fairey, of course, is claiming his use of the image (which he downloaded from Google) is acceptable under the Fair Use provision of U.S. Copyright law.

I smell a teachable moment here. Might be interesting to stage a debate in class with some of your students taking each side of the case, researching pertinent facts and information (e.g, What does Copyright protect? What is Fair Use?), and another group of students (3 or 5) serving as an impartial panel of judges to hear and deliver a verdict in the case.

While I assume Fairey’s argument would receive favorable treatment by the students, it might help sway their opinion the other way to know this isn’t the first time an artist has been accused of copyright infringement over unauthorized use of a photograph in a work of art.

If you’re looking for a basic format to use in staging this activity in class, see INNOCENT OR GUILTY: Deciding the Fate of Sherrie Levine.