The definitive answer in the Obama poster debate

Stephen Colbert recently hosted a debate between David Ross, former Director of the Whitney Museum, and Stephen’s brother Ed, a partner at Kenyon & Kenyon who specializes in copyright.  This debate produced what I think is probably the definitive answer on how the Shepard Fairey copyright debate should come out.

The money quote:

STEPHEN: Who do you really think is right?

ED:  Who’s paying me?

The Obama Poster Copyright Mess

One of the more interesting things going on in “popular IP” right now is the Shepard Fairey copyright dispute.  This has been blogged about and written about extensively elsewhere, but to sum up where it’s at right now:

1. Mannie Garcia took a photograph of Obama.
2. The AP (maybe) acquired the rights to the photograph from Mannie Garcia.
3. Shepard Fairey copied the photograph and altered it to create the ubiquitous red and blue Obama “Hope” poster.
4. The AP threatened to sue Fairey for copyright infringement, but during settlement negotiations, Fairey filed for a declaratory judgment.

This is another one of those “popular IP” issues where most people read the story and think, “Oh, I heard about this thing called ‘fair use’ one time.  I love that Hope poster!  Therefore, it’s obviously fair use!” 

No.  Well, it’s not obviously fair use, at any rate.