The Associated Press claims that Shepard Fairey's iconic "Hope" poster of Barack Obama infringes copyright to a photograph taken by Mannie Garcia. According to an AP wire service report, "The AP says it owns the copyright, and wants credit and compensation." The Fair Use Project at the Stanford Center for Internet and Society reportedly represents Fairey and advances a defense based on free use (whose outlines were summarized in a nice BBC News report). Discussions apparently are underway.

What's going on here?

I have nothing to do with the case (and if I did I wouldn't post on it). I haven't turned to Nimmer on Copyright for insight and won't speculate about how this case plays out under US copyright law. These are the questions running through my mind:

  1. Is the AP using Fairey's case to raise awareness about licensing for noncommercial use, much as Fairey used Garcia's photograph to raise awareness about Obama?
  2. There's a longstanding tradition, in the United States, of a test case, whose purpose is to establish precedent. In a test case, plaintiff and defendant sometimes litigate a case to judgment even though the financial stakes are small. In this case, however, the AP doesn't seem to have actually filed suit. No one seems eager for this case to go before a court. Is the AP simply doing business in the public square?
  3. As a matter of public policy, what should be the limits concerning copyright and photographs? I've never seen Obama with my own eyes, so I'd have to rely on images to form an impression of his appearance and to sketch a likeness of Obama. What should be the copyright protection of: a rapid-fire sequence of images taken at a rally, where press photographers are assigned specific places and compelled to take pictures from prescribed angles; or a still image taken from a remotely controlled or automated camera (such as a security camera used for video-surveillance)?
  4. Is Fairey doing, in the sphere of the visual arts, what we're familiar with as remixing or sampling in the musical world? If so, as a matter of public policy, isn't this an activity we'd want to encourage? 

Thanks to my brother Ken for tipping me off about the AP wire report just seconds after it was released, and congrats to Mannie Garcia for his personal site.