Now that the source material for the iconic Barack Obama campaign image, produced by Shepard Fairey, has been identified, the fair use fun can begin. The photographer says that he doesn’t want to make trouble. But some in the art world have been gunning for Fairey, arguing that he’s not just a bad artist, but not an artist at all. The claim is that he appropriates historical images, often images with salient and significant political force, strips them of context and original meaning, and re-purposes them solely for the almighty dollar. To extend that argument (made pre-campaign) to the Obama image, it might be said by the critics that Fairey’s artistry, such as it is, represents the antithesis of the progressive politics that now-President Obama epitomizes. I don’t know that the critics do say that, but it’s easy to see where the argument takes you, and them.
In the copyright world, does any of that matter? Should it? Probably not, on both counts. That doesn’t necessarily let Fairey off the hook if the owner of the copyright to the Obama photo wants to make a fuss. Sure, the photo is “transformed” to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways.