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February 10, 2009


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aj azpiazu

the hope poster is almost certainly a photoshop of the original ap photo. the amount of work taken and the commercialization of the poster (even if those profits were donated to the obama campaign) leads me to believe that under the law as it stands, the AP will likely win.

incidentally, you too can create inspiring political posters, though it might be wise to secure the rights *before* it becomes the most popular mashup in history.


"Another photographer taking exactly the same picture at exactly the same time would have full rights as to the image she took, and Garcia could not somehow block the second photographer merely because he had simultaneously taken the same picture."

--- Isn't that because of the independent creation doctrine, which blocks the inference of copying-in-fact? (Which is an inquiry that is analytically prior to whether the copying constitutes an infringement).

--- Here, there is no doubt Fairey copied the AP's photo: he admitted to it. The fact that another photographer might have indpendently snapped the same photo seems irrelevant to the infringement question.

Ruben Rodrigues

I'm glad you mentioned the fact that Fairey's work might not at all be a COPY. I don't know what Fairey's court filings actually assert, but all the media coverage seems to focus on the Fair Use defense (which, as you point out, one doesn't need to get to if there's no copying).

In response to aj: even if the photo was photoshopped, I'd argue nothing that is protected under copyright exists in Fairey's final piece. All that remains in the final work is Obama's position and likeness, uncopyrightable features. (Not to mention news photos have tended to have the thinnest of thin copyright protection).

I guess I disagree here with Prof. Picker, since he seems to place a heavy distinction on whether Fairey was just looking at a photo rather than working on top of it. I think the situation might be different if some bits of the original photo were there (a half-AP and half-Fairey image perhaps). However, where the end product is so different from the original, the process to getting at it shouldn't matter in my opinion.

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