A popular example of the power of remix culture and transformative uses of artwork has been the popular image of President Barack Obama. The Obama “HOPE” portrait by Shepard Fairey has been become a popular symbol of the president, splashed on everything from t-shirts to books by dozens of different groups, all without Fairey demanding compensation.

Fairey based the Obama picture of an image he found on Google Image Search in November of 2008 and printed a bunch of posters. It took the internet army to find the inspiration.  The picture was traced to an Associated Press photo by Manny Garcia (with some debate, one website thinks the picture is from Reuters).

Just yesterday, the Associated Press announced it was looking into legal action against the artist.  It took three months for the news wire to even recognize the art was based on their photo and likely based their response on the conclusion of internet researchers doing their work for them.  Fairey claims his artwork is a fair use exception to the AP’s copyright. This isn’t the first time AP has abuse copyright.

The “HOPE’” portrait is an obvious transformative work, so transformative the AP didn’t recognize it until other people pointed it out. Transformative works are recognized fair use under the law.  What transformative means is up for debate, though, leaving the picture in legal limbo until the courts hash it out. The Supreme Court helped define transformative in Campbell v. Acuff-Rose Music, Inc. as:

The enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

The “HOPE” poster completely transformed the expression, meaning, and message of the original press conference photo. That’s fair use and hopefully the AP gets told so by the courts.

Shockingly, the AP is taking legal action after the artist has been getting tons of press and attention because of his own freedom with copyright, allowing others to repurpose this image for causes. He even went on the Colbert Report talking about how he’s embracing remix culture, letting others make money on the poster while he gets the name recognition to sell other art (he did get on Colbert, one of my dreams).  AP’s attempt to control the copyright would limit the creative potential of the photo – potential AP obviously never saw but Fairey did.  How’s that for transformative.

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