It should come as no surprise that Shephard Fairey’s poster counts as fair use. Jonathan Melber lays down some more reasons why the AP’s case against him is groundless. [via]:
And the other “fair use” factors? Well, Fairey didn’t harm the commercial value of Garcia’s photograph–he vastly increased it. Danziger Projects, a contemporary gallery in New York City, is selling a limited edition of the original picture, signed by Garcia, for $1200 each. (The Museum of Fine Arts in Houston has already bought one for its permanent collection.)
So why is the AP acting like it has a case? Because juries are unpredictable, copyright law is confusing and defending a copyright lawsuit is extremely expensive. So powerful companies like the AP don’t necessarily care whether they would win. They know that most artists cannot afford to hire lawyers, and that even the ones who can will probably prefer to settle out of court than get dragged through three years of litigation.
Shephard Fairey has donated all revenues from his project (as far as I’ve heard) to charities.