Protecting brands

The Associated Press has claimed the “Hope” image of US President Barack Obama is an infringement of their copyright and are seeking compensation.

Shepard Fairey, the artist who created the hope image, admits the image is based on a photograph taken by a photographer working for the Associate Press. The photograph that inspired the disputed artwork was taken by Mannie Garcia, a freelance photographer, working for the Associated Press on the day the photograph was taken, in April 2006.

In an interesting twist, court action has been started by Shepard Fairey seeking a court order that the image does not infringe the Associated Press’ copyright.

An existing artwork can be used to create a new artwork and not be an infringement of copyright if the new artwork is sufficiently different. Fairey is relying on this concept of ‘Fair Use’ in this court action.

In Australia our copyright law is more restrictive and fair dealing only applies where the artwork is reproduced or used for the purposes of study, criticism or review. As the image has not been used for any of these purposes, by not seeking permission to use the image Fairey would probably be in breach of the Associated Press’ rights.