Shepard Fairey has just written an extensive piece about the AP lawsuit and the Obama image. If you’ve been following this story at all his post is worth reading to get his perspective right from the source:
I’m very saddened to see many people try to demean my Obama poster as being “stolen” or that because I used a photo I “cheated”. As far as the idea of the image being “stolen”, I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled.
He gives an extremely sound argument about the usage of reference photos in the history of art and points out many contemporary artists who use reference photos all the time. Referencing photos for illustrations is taught in art schools and has been practiced since photography was invented. However I don’t think that is the most important point. At the end of the piece he notes that “If the AP wins their case, every Obama art (or any other politician) that was based on a photo reference that was not licensed would be rendered illegal… I think art that is critical of leaders that neither the subject or the photographer approve of need to be a legal form of expression.” Political art, for or against a candidate, almost always features an image as the quickest way to convey the idea (think of all the Bush images you’ve seen the last 8 years) – if the AP wins this case those would all be made illegal and free speech will suffer a very painful blow.