By Andrew Hudson Published: August 13, 2012 Updated: January 20, 2016
I often hear from people who want to paint someone else’s photo. In such as derivative work, the painting gets copyright but the underlying photo may also have copyright protection. A prime example of what can happen is the case of the Barack Obama “Hope” poster.
Artist Shepard Fairey based his iconic poster on an image he found using Google Image Search. The source image was a photo taken in 1996 by freelancer Mannie Garcia for The Associated Press (AP) as a work made for hire. When Fairey started making money from sales of the poster, the AP insisted that “its use required permission.” Fairey replied with a lawsuit against the AP seeking a declaratory judgment of fair use, but the judge stated that “whether it’s sooner or later, The Associated Press is going to win.”
Fairey was forced to settle in 2011, and the AP stated they would “share the rights to make the posters and merchandise bearing the Hope image and … the parties have agreed to additional financial terms that will remain confidential.”
“The AP will continue to vigilantly protect its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use.”
— Tom Curley, AP president, January 2011
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