Fair Use Or Infringement? Obama Image In Spat

The Associated Press is alleging copyright infringement for an image of Barack Obama created by street artist Shepard Fairey. Fairey's lawyers say the image is protected under fair-use provisions.

Margaret Esquenet, an intellectual-property lawyer with Finnegan, Henderson, Farabow, Garrett & Dunner, a Washington, D.C., law firm, says several factors must be examined in the fair-use defense.

"The artist here would have a good argument that the photograph is factual; it's of a real person at a real event in a news context," Esquenet tells NPR's Melissa Block. "It doesn't appear that the photographer spent time posing or arranging the lighting or arranging the background ... that would give it the creative elements that you'd normally see for a photograph."

She says an amicable solution is possible.

"I think a reasonable solution would be to ensure that the AP gets credit every time this is used," Esquenet says.

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