AP, Fairey settle over Obama poster

Almost two years ago I predicted that serial plagiarist Shepard Fairey was likely to win his defense of using an AP photograph as the basis for his famous Obama poster. And this week, my prediction ... became moot. Fairey and AP settled the case and there is no ruling.

But if I score my prediction anyway, I might have to call it a miss. Under the terms, AP will share the revenue from the poster and Fairey agrees not to use any more of their photographs without permission. That's hardly a victory for Fair Use.

I thought the poster would pass muster as a transformative use of the photograph, that the original was more of a factual than a creative work, that Fairey's use did no damage to the market for the original, and that these factors would provide a reasonable chance of success in defending his poster. Fairey must have concluded otherwise, since all this deal does for him is make the threat of larger penalties go away. AP, on the other hand, probably couldn't get a much better deal even with a clear win, so it was better to settle on these terms than to keep spending money fighting a court case.

As I said two years ago, I'm no fan of the way Fairey uses other people's work, but this was one of his less egregious borrowings and I would have preferred to see it vindicated.

PS. Law.com reminds me that Fairey sabotaged his own case when he initially lied about which photograph he had borrowed and destroyed evidence to hide that fact. I had forgotten about that and no doubt it factored into Fairey's estimation of his chances in court.