Fairey's main problem is that he admits to copying a picture from the internet. This proves that, at the very least, he had access to the picture. Couple this with the overt similarities between the “Hope” poster and the AP and Reuters pictures, and you have satisfied the two prongs of the infringement test.

At this point in the game, and given the aforementioned admissions, I would draw the following analogy in defense: I would liken the “Hope” poster to a painting of any famous landscape. Upon inspection, any person with a picture of that same landscape would have a colorable claim against the painter. To make the analogy more similar to the case at bar, I would add that the painter has had access to at least two photographs of the same landscape.

So, yeah, access to the prior pictures can be proven, and substantial similarity can be proven. But, should we enforce the Lockean “sweat of the brow” doctrine against Fairey? Should he be civilly liable for not going and taking his own Obama picture as a basis for his poster? Or should we be able to expand upon thinly protected copyrights that, nowadays, differ by perhaps a few dozen pixels from eachother?

Also, on a side note, what do you think about the new Pepsi campaign? http://brain-terminal.com/posts/2008/12/31/drin…