"Hope" Poster - Fair Use or Copyright Infringment?

One of the most celebrated works of campaign art in American history, Shepard Fairey’s “Hope” poster, was added to the collection of the National Portrait Gallery in Washington. The poster has also been the focus of a copyright-infringement lawsuit between Shepard Fairey and the Associated Press.In early February 2009, the Associated Press determined that the photograph used in the poster is an AP photo and that its use required permission. At the time of the Associated Press’ original allegations, Shepard Fairey’s attorney stated that the use of the image is “fair use” and thus protected by copyright law. A few days later Fairey filed a suit against the Associated Press, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.In his February 9, 2009 Complaint for a declaratory judgment against the AP , Fairey claimed to have used an AP photograph of George Clooney sitting next to then-Senator Barack Obama as the source of the “Hope” posters. However, as the AP alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of then- Senator Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did and that he at least had to crop it.In October 2009, Fairey admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions. In early 2010, it was disclosed in court that Fairey is under criminal investigation after he said he erred about which AP photo he used as a basis for “Hope.” He acknowledged that he had submitted false images and deleted other images to conceal his actions.As of April 2010, lawyers for artist Shepard Fairey were ordered to disclose the identities of anyone who deleted or destroyed records related to a copyright dispute over the Barack Obama “Hope” image. Fairey’s image has had an undeniable cultural impact. His red-white-and-blue poster of Obama with the word “Hope” at the bottom (pictured) has spurred an ongoing parade of parody images featuring everyone from Sarah Palin (“Nope”) to Heath Ledger (“Joke”).Paste magazine’s easy-to-use, web-based Obamicon generator—one of many online tools that make it easy to modify an picture to look like Fairey’s poster—has reportedly created more than 500,000 of these images.What do you think? Is the Obama "Hope" poster an example of fair use or copyright infringement?SOURCES:http://www.ap.org/iprights/fairey.htmlhttp://www.wired.com/underwire/2009/02/copyfight-erupt/http://www.copyright.gov/