As the New York Times reported, artist Shepard Fairey, maker of the iconic Obama campaign poster, has preemptively sued the Associated Press over image usage rights. Fairey's poster, pictured above in it's new home at the National Portrait Gallery, was based on an AP photograph taken by freelance photographer Mannie Garcia. The AP has been threatening to sue Fairey for copyright infringement, demanding part of any proceeds from the image.
First off, any judge following fair use precedents will most likely decide that Mr. Fairey's artwork fits pretty snugly under all categories of fair use. The image is definitely transformative, using the photo merely as a reference for a pose in a very good piece of art. Though it has generated a bit of money, it was originally made to support a political cause, not to profit off of. It doesn't use the entire content of the image, and finally, it has not negatively affected the value of the original photograph. In fact, the photograph is certainly more valuable now.
Having that out of the way, I have a deeper psychological and emotional reaction to the AP's jack move. One widely accepted explanation for the rise of pop art is that it was in response to the deluge of images hitting us with the rise of the media age. Before commercial advertising and the widespread enforcement of copyrights, artists were free to engage, copy, transform and respond to anything that entered the visual field. Now everywhere we go we are barraged by images meant to convince us to buy certain things, and these images, mass produced, "belong" to corporations. Pop art appropriated this new flow of images, taking them out of context or transforming them to make statements about society and or the nature of this new commodity culture. This also extended to the appropriation of mass-produced objects, such as Duchamp's Fountain. The nature of mass production itself has become a medium and topic of art as well. My favorite example is Piero Manzoni's "Merda d' Artista", literally cans of his own shit.
Back to the topic at hand, what AP is trying to do is turn this tradition on its head. If they were to succeed, then artists would no longer be free to respond to the imagery that invades our visual field and are quickly coming to dominate our perception of the world. The artist would be forced to engage in a commercial relationship with the image owner, literally selling out before his brush even touches the canvas. Our visual field has expanded vastly since the birth of mass media, but the AP wants to make that part of the visual field off limits to artists.
The AP pays for its photos, and rightly demands payment when those photos are used in newspapers and websites around the world. But this has just gone too far. Nothing that enters our commons, nothing that affects our lives should be off limits to artists. Period. If you can't deal with that, keep your images to yourself.
Besides, there's still some dispute about who owns the image. Mannie Garcia claims AP never paid him for the photo. He has also praised the artwork, and said that he wouldn't pursue damages against the artist. Good on him.
Fairey is also the creator of the iconic "Obey" image that popped up in cities across America in the '90's. Here's my favorite derivative of that one.