I started collecting reactions to the AP's claim of copyright infringement re Shepard Fairey's Obama image. A few more:
Brooklyn Law's Jason Mazzone asks, "Is the use fair? Hard to say. That's the trouble with fair use." He goes on to say that "a more interesting problem" is whether the AP photograph meets "the threshold requirement of originality. . . . Arguably, Fairey has simply reproduced Obama's facial features--as to which the AP owns no copyright."
GW Law's Daniel Solove acknowledges that "copyright law is suffering from a bit of delirium these days, so it's hard to know what's up or down or fair use anymore," but thinks this "might" qualify: "The [Fairey] poster isn't a direct copy of the [AP] image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo."
In the comments to Solove's post, New York Law's James Grimmelmann says it's an "unambiguous fair use" (though he concedes that "perhaps there's only a 70% chance a court will reach the right result"). He adds that "Fairey has a decent case that his poster isn't even substantially similar to the photograph. Once you remove all the uncopyrightable elements of the photograph -- e.g., Obama's facial shape -- and all the elements that Fairey didn't copy -- e.g., the focus -- there's not very much left." (Bob Clarida made a similar point here.)