Fair Use?

The Associated Press has claimed a copyright infringement for the now very famous picture of then Presidential Candidate Obama that has the word "HOPE" emblazoned under it. The photograph in question was on assignment for the AP and hence is clearly "work product". There is little doubt that the AP owns the copyright for the photo.

The artist, Shepard Fairey, acknowledges locating the photo on Google Image Search and creating his derivative work from that photograph. Although he did not receive any compensation directly for the image, and that is not a necessary element of a copyright infringement, many people who used his derivative work are being compensated.

Mr Fairey is claiming his image is not a copyright violation because it falls under the "Fair Use Clause"

Mr Fairey licensed his work to to a publisher for a book listing him as the sole credit for the image. That publisher is now profiting by using the AP's photo in a commercial endeavor.

The Obama Inaugural Committee sold posters of the image signed by the artist for $100 to $500 apiece. Being that I'm a mechanic and not a copyright lawyer I may be way off, but I think it is good for Mr Fairey to be in negotiations with the AP because I think he has a very weak case here.