Susan M. Kornfield, J.D.skornfield@bodmanllp.com

You have heard that the Associated Press is claiming that a photo in which it holds copyright (on the left) has been infringed by a work of art by Shepard Fairey (on the right).
Now, you might look at the image on the left and then the image on the right and say “Gee, they look substantially similar to me.” Well, in the copyright universe, that’s just not enough. Let me ask you why they look similar. Hint — they both depict the face of the same man at a particular moment in time? The photo was not taken at a photo shoot where the AP made all the creative choices. Indeed, it was taken at a news conference where AP did not pose Mr. Obama, did not choose the props, did not choose the lighting, did not set the background, and did not “evoke the desired expression.” Anyone who had an autofocus lens standing next to the AP’s photographer would have captured the same image of Mr. Obama.

Mr. Fairey is, apparently, asserting copyright fair use. Meaning, he is saying “yes, I copied authorship in which the AP owns copyright, but I have an explanation and justification that allows my usage without violating the AP’s copyright.”Here’s what he should be saying: “I didn’t copy the AP photo. I created a work of art that depicts the same man as depicted in the AP photo. The AP does not own copyright in Mr. Obama’s face.” Period.

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