Barack Obama "Hope" Poster - Origin and Copyright Issues

Origin and Copyright Issues

The original source photograph Fairey based the poster on was not publicly known until after Obama had won the election. After a mistaken attribution to Reuters photographer Jim Young for a similar-looking January 2007 photograph, in January 2009 photographer and blogger Tom Gralish discovered that the poster was based on an Associated Press photograph by freelance photographer Mannie Garcia. It was taken at a 2006 media event with Kansas Senator Sam Brownback, where the actor George Clooney was raising awareness of the War in Darfur after a trip to Sudan he had taken with his father.

On February 4, 2009, the Associated Press announced that it determined "that the photograph used in the poster is an AP photo and that its use required permission." In a press release, the AP announced they are in discussions with Fairey's attorney to discuss an amicable solution. Fairey is being represented by Anthony Falzone, executive director of the Fair Use Project at Stanford University. Falzone is quoted in the press release, "We believe fair use protects Shepard's right to do what he did here." Fairey subsequently filed a federal lawsuit against the Associated Press, seeking a declaratory judgment that his use of the AP photograph was protected by the fair use doctrine and so did not infringe their copyright.

On October 16, 2009, Fairey admitted that he had based the poster on the AP photograph and had fabricated and destroyed evidence to hide the fact. Fairey's admission came after one of his employees informed Fairey that he had discovered damning documents on an old hard drive. Realizing that these documents would expose his cover-up attempt, Fairey chose to come clean to his attorney.

Photographer Mannie Garcia contended that he retained copyright to the photo according to his AP contract. He said that he was "so proud of the photograph and that Fairey did what he did artistically with it, and the effect it's had," but that he did not "condone people taking things, just because they can, off the Internet." Fairey countered that his conduct did not constitute "improper appropriation" because he had not taken any protected expression from Garcia's original photo. In addition, he claimed his behavior would qualify as a fair use. At trial AP would have to address both arguments.

A judge urged a settlement, stating that AP would win the case. The AP and Shepard Fairey settled out of court in January 2011. In a press release, the AP announced that the AP and Fairey "agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential."

In a separate criminal action, federal prosecutors suggested that Fairey should face prison time for the destruction of evidence in the case, with the government sentencing request stating that "A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct. Encouraging parties to game the civil litigation system…creates terrible incentives and subverts the truth-finding function of civil litigation." However, his sentence was ultimately limited to 300 hours of community service and a $25,000 fine.