Stolen Hope?

            When the street artist Shepard Fairy made his iconic ‘hope’ poster featuring the face of President Barak Obama for the 2008 election, he likely felt that his use of someone else’s photograph as a reference for his own piece was valid. However, I feel that the manner in which he referenced the photograph was not sufficiently inventive to qualify as fair use and was a violation of copyright law.

            According to Teachingcopyright.org, “A particular use is more likely to be considered fair when the copied work is factual rather than creative.” (http://www.teachingcopyright.org/handout/fair-use-faq)

            Photographs of public figures, as well as other well-known elements of popular culture, do have a tendency to be used as factual work. The public generally needs pictures of elements of culture for reference and the sharing and building of ideas and information. I think that Photographs should be regarded as creative in nature, however, as they are a form of art. To avoid copyright infringement, images intended to be redistributed should be restricted to those licensed as public domain or with Creative Commons because those licences imply permission for this use in limited contexts. To redistribute a copyrighted image without permission should not fall under the protection of fair use because of its exploitative nature.

            Shepard Fairy did not redistribute the copyrighted photograph he used as a reference, but he did use it rather directly to make his poster which was distributed thoroughly. Although the work on his poster is his own art, it so closely resembles the reference photograph that, side by side, the two images appear to be different versions of the same piece. Given that Shepard Fairy has relied on the copyrighted reference photograph so closely, I feel that he did, whether intentionally or not, copy the photographer’s work and violate copyright law.

            A more practical option that Shepard Fairy might have considered before creating his iconic piece would have been to use several different photographs of President Obama as references. By using different elements of many references to influence the anatomy of the portrait, Fairy might have created an equally recognizable piece that was uniquely his own.