Is Shepard Fairey in the business of infringing copyrights or creating new transformative works?

That is a hard question to answer and I am not sure it can be answered in this brief blog post.  It is a question a judge will be answering at some point in the future in the Fairey v. The Associated Press complaint for Declaratory Judgment Injunctive Relief filed in the Southern District of New York case number 09CIV01123. 

The general facts are this:  Visual artist Shepard Fairey created what has become known as the "Hope Obamacon." Fairy used a picture of President Obama and created an abstracted graphic rendition of President Obama gazing up and to the viewer’s right, colored in a palette of red, white, and blue with the word HOPE.  The photo that is the basis of Fairey's work was taken by an AP freelance photographer, Mannie Garcia.

AP claims they own the copyright in the photo, Mr. Garcia claims he owns the copyright in the photo, and Fairey is claiming there has been either 1) no infringement; or 2) there has been infringement but he has a valid defense based upon "fair use" ...  a transformation from the photo to the final product. More...