Fairey may have donated the money to the campaign, but he still made profit from the image in order to obtain that donation money. Last I checked the ObeyGiant site is not a non-profit nor Fairey's studio. Fairey is free to do what he wants with his money after earning it, but the fact is he made profit. The fact that he made it clear that money would go toward the campaign does not matter because he is not running a non-profit.

The Reuters photograph was thought to be the photograph Fairey used before the Mannie Garcia info was made public. A gallery representing Fairey admitted to Garcia and the press that the origin of the poster is Garcia's photograph. Shepard Fairey has also finally said that it was indeed Garcia's photograph. I'm sure the AP knows what they own or not. Their legal team is expansive.The AP supports copyright protection so my guess is that they are doing this to make a stand. You have to remember that copyright is designed to protect creators of original works. It is not a catch all protection for everyone else to use those works. Fair use is limited for a reason.

Garcia is known for being a creative photographer so that will work for the AP. Fairey should have used an image that was more widely known or he should have contacted the photographer and AP in the first place. Fairey is a professional illustrator working for major companies. He should know the rules when it comes to using images by others in his work. Working against him is the fact that he settled with the estate of Rene Mederos in 2007 for copyright infringement. That could come up. His ethics are also in question because he sent a cease and desist letter to an artist named Baxter Orr after or made a parody of Obey Giant which was a perfect example of fair use under both copyright and trademark law. Obey Giant is known the world over so it is a good choice to use for fair use.