Is this one of those Martha Moments™ where the cover-up is worse than the actual crime? Maybe. Turns out Shepard Fairey did use a version of the photo the AP had claimed he did all along. If you followed the case of his iconic Hope design, you know he was inspired by a photo of the then senator, but claimed it was a different shot of him next to George Clooney that he used. (The pose would later become the basis for the poster hung round the world.)
His arguement is simply this: “Regardless of which of the two images was used, the fair use issue should be the same.”
Originally, Fairey claimed that he was under the impression that the image was in the public domain, and as such, fair game. But the AP said otherwise. I’m really unclear how Shepard would think the AP would just let their images be used for commercial purposes.
While laws are different around the world, the copyright clock in the U.S. starts the moment work is created and/or published, and is good for 95 years from publish date or 120 from creation date. (Regarding authorship, the copyright covers the life of the creator plus 70 years.)
The photo was taken in 2006 and I doubt it moved into the public domain that quickly. Maybe he thought Obama was a public figure? Even that doesn’t seem to hold water since public figures still own rights to their images as well as the rights of photographers who shoot them.
The issue of which image he used is splitting hairs, but like Stewart, it’s overshadowed by this “little” detail of lying about which image he did use, then trying to cover it up. In other words, he may be right, but that might not matter anymore.
(UPDATE: I noticed that ANIMAL New York has a Fairey email from earlier this year which doesn’t really help him out.)
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