I received an email from a friend minutes ago, in its contents was an article from the New York Times. The article was stating the Artist known as OBEY (Shepard Fairey) is and has been intertwined in a lawsuit over his now famous Obama HOPE posters.

The poster has a picture of Barack Obama's Face looking up and away, taken from a press conference in 2006. Fairey's original claim is: its from a press conference from 2006 where he was sitting next to actor George Clooney, and therefore it was fair use. (Clarified later)

Anthony T.Falzone who is the executive director of the Fair Use Project and a law lecturer for Stanford University has stated: Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia took. (Source NY Times)

He also claims Fairey has done nothing wrong.

The suit asks the judge to declare that Mr. Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment.

Depending on who you talk to the picture could be seen as criticism.

Paul Colford, a spokesman for The A.P., said on Monday (this last Monday) that the agency was “disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey’s failure to recognize the rights of photographers in their works.”

However, last week Fairey and his company have been in talks with the AP working to settle amicably, in fact with the proceeds going to A.P. Emergency Relief Fund, which is a charitable fund that supports A.P. journalists around the world who suffer personal loss from natural disasters and conflicts.

A few interesting developments worth noting:

A collaged work made by Mr. Fairey based on his Obama poster was acquired last month by the National Portrait Gallery in Washington, part of the Smithsonian Institution, and placed in its permanent collection.

Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday (Last), Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

Garcia:
“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”

He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”

~New York Times

With all that said, I can say personally, if he has used the piece that Garcia took with out Garcia's consent, it is considered art theft. But, there are two three things, that present thisas a very unique; and odd situation.

Garcia himself has said, he was not even aware that the photograph is his; and he is proud of the work being used. The second, is that the work has been accepted into a museum in a collage form; acknowledged by the Smithsonian. The third, the Obama campaign team was presented with the poster, and acnowledged it, however they did not use it because there were concerns at the time of copyright infringement. So, why wasn't something done at the time? Fairey used those posters everywhere to promote the Obama campaign team...

Fairey, himself is known as a graffiti artist. Depending on your personal feelings about graffiti the work could easily be seen as criticism, or as menacing.

Fairey is well known for his work as OBEY, which has included the face of Andre the Giant with OBEY written underneath, or "Andre the Giant Has A Posse." Which has become a pop culture icon. His work has included the face from 1984, and various other works.

Fairey is known for manipulations, that make very political statements, and at 38, still pastes them or spray paints stencil mediums of his work everywhere.

There has been speculation that Fairey himself does not create his own images, which does contain truth as several of his works including the "Andre" logo are available for free use for stencil. However, the piece in question is not one of them.

Just for curiosity's sake I looked up first: OBEY obama, it came back with 156 hits.
Then Shepard Fairey Obama, 182 hits. Shepard Fairey, (stand alone) 690 hits.
Just here on deviantART.

Something to consider....