by Mike Masnick
Wed, Feb 4th 2009 6:01pm
Just last week, we wrote about the question of whether or not the iconic image used on Obama posters that was created by street artist Shepard Fairey was copyright infringement. For a while, no one (including Fairey) could figure out what photo was the basis for the image. But a photojournalist tracked it down, and discovered it was by a photojournalist named Mannie Garcia, who was doing work for the Associated Press at the time. Garcia didn't mind at all, but as we noted in our post, the AP might take a different view on things, since it's so aggressive with copyright. However, even we thought the AP wouldn't be so stupid as to actually demand payment for the use of the image... but we were wrong.
Yes, the Associated Press is now claiming that the use of its image is copyright infringement and is demanding payment. Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images. If that's not a transformative (i.e., allowed) use of the image, it's difficult to say what is. Given the posturing on both sides, it doesn't look like Fairey (who's smartly being represented by Stanford's Fair Use Project) is going to back down. Hopefully, the Associated Press is finally taught what fair use means. It could use the education.
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