I saw this topic related article in the February edition of Managing IP :
[ I can't post it in the copyright forum :~((...

http://www.managingip.com/Article/2102438/Artist-pleads-fair-use-over-AP-photo-of-Obama.html

WEEKLY NEWS - FEBRUARY 16, 2009 Artist pleads fair use over APphoto of Obama

An artist s rendition of an Associated Press photo that came to symbolise Barack Obama s presidentialcampaign has become the subject of a heated debate over fair use in the US

The AP photo was taken during an event at the National Press Club in 2006, and was later digitally altered by artist Shepard Fairey for a series titled the "Obama Works".

The AP claimed that the infringed copyright. But Fairey's lawyer, Anthony Falzone of Stanford University's

Fair Use Project, last week filed a complaint in the Southern District of New York to block any future claimsby the AP, marking an abrupt end to licensing negotiations between the two parties.

Falzone chose to try the case in the Southern District of New York, where a 2006 judgment in Blanch v Koons affirmed that artist Jeff Koons' sampling of a photograph in a collage fell under fair use requirements.

In a statement, the AP's director of media relations, Paul Colford, said: "AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP."

While there is little disagreement that the AP's photo inspired Fairey's works, the key question will be whether or not the work is transformative. "The issue here is: Is it original? Did he create it? It's not whether it is art," said Ed Colbert of Kenyon & Kenyon. "Transforming [the photograph] requires more than an alteration of the original."

"The AP is going to say it's not a transformative use," said David Donahue of Fross Zelnick. Donahue added that the AP is also likely to argue that it has licensed news photographs for political uses before.

Fairey's fair use argument could also be undermined by the profits he earned for his work. "It's more difficult to argue fair use when there's a commercial aspect to the user's work," said Donahue. "The court should analyse fair use as of the time the work was created, when Fairey created the poster with the intention of selling copies of it. The fact that the work became famous does not make the use any fairer."

The case demonstrates one of the grey areas associated with applying copyright law in the digital age. But both Colbert and Donahue see little potential for legislation in the future. "I think there is benefit to having an elastic standard," said Donahue. "The difficulty lies is predicting how a court will come out."

Kenyon's Colbert agreed. "If you want certainty, yes, you'd have to start tightening up lots of areas of copyright law," he said.

Colbert, however, sees these ambiguities as promoting innovation. "If you want to encourage people to think outside the box a little, to give the courts a little room in determining what's fair, because you never know what the future will bring, then you want some flexibility

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***Blanch v Koons affirmed that artist Jeff Koons' sampling of a photograph in a collage fell under fair use requirements.***The March issue of Managing IP will feature a discussion of the changing face of copyright law in the digital age, including an interview with copyright activist, Lawrence Lessig.

"In Life, as in Photography, things look much brighter, once you remove the lens cap"