Paul Watler's Perspective

The famous Obama "Hope" campaign poster has spawned a notable lawsuit which may test the modern limits of the fair use defense to copyright infringement.

The Associated Press claims its copyright was infringed by the unlicensed use of its original photograph. On assignment by the wire service, an AP photographer worked hard to get the photo of then-Senator Obama, seated on the dais at a conference on Darfur, attentive to another speaker. The AP photographer applied his many years of experience and training to frame and reframe the picture, waiting for just the right moment to capture the money shot.

A graphic artist used the news photo to create the campaign poster. The artist added a red, white, and blue overlay to the photo and the "Hope" caption below the image of the upward-looking, optimistic candidate. The artist contends his use was "transformative," in essence, creating a new artistic work and thereby "fairly" using the original photograph.

- View the original photograph and the poster image -

Ironically, the fair use defense is most often invoked by news organizations. But this role reversal case finds the nation's oldest wire service challenging the concept. One of the statutory factors in a fair use analysis weighs whether the use was for news reporting purposes. This factor is often given great weight, but it is not dispositive. The fair use doctrine provides a lifeline to the media to report breaking news without the delay of obtaining a license from a copyright holder. A campaign poster hardly fits this criteria.

There is precedent for a news organization to successfully counter a fair use defense. In 1992, the Los Angeles News Service captured dramatic helicopter video of the brutal beating of truck driver Reginald Denny by a rioting crowd in the aftermath of the acquittal of officers in the Rodney King case. A local network-affiliated broadcaster, a non-subscriber to the news service, used the video without permission, contending it was fair use as breaking news. The Ninth Circuit rejected the defense, finding the broadcaster’s use was substantial and non-transformative.

In the Obama poster case, the alleged infringing use clearly was not for news reporting purposes. Indeed, the original creation of the poster using the AP photo was for commercial purposes. In a recent court filing, the artist contended that the AP is hypocritical because the wire service often publishes photographs of artistic works without obtaining a license. However, as the AP points out, the artist's filing omits the newsgathering context in which the images of the artistic works were used by the AP.

In an era when news organizations are becoming newly assertive in protecting revenue streams, the Obama poster copyright case will be closely watched. Will the wire service, which invests millions of dollars to deliver news photography to a worldwide audience, enjoy the protection of the copyright laws for its original creation? Or will a commercial artist convince the courts that it was fair for him to use the product of the AP's enterprise without compensation to transform a news photo into an iconic campaign poster?

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.