The lawsuits over the Obama “Hope” poster questions fair use, what constitutes art, and ethics in commercial art (NYTimes.com article). Embroiled are arguably the world’s most famous semi-legal street artist, a previously under-the-radar freelance photographer, and one of America’s most trusted wire services.

WHYY’s Fresh Air attempted to present all sides of the story. Host Terry Gross interviewed Shepard Fairey, the poster artist; Mannie Garcia, the freelance photographer; and a lawyer on fair use. She also read a statement from the Associated Press.

As an artist, I am all for Fair Use and artistic appropriation. I think Fairey’s pre-emptive lawsuit against the A.P. is motivated primarily by self-interest, but he might also harbor a sense of duty and morality — he seems to recognize that few artists enjoy his enviable capacity to fight the A.P.

On the other hand, as a freelancer, I sympathize with the photographer’s right to be credited and compensated accordingly.

I don’t, however, feel for the A.P. Bullying Fairey, disputing their own freelancer*, and sending Fresh Air a statement instead of a representative (what kind of media company avoids other media outlets?) scream, “Evil corporation” to me.

[*Garcia and the A.P. are in a dispute over ownership of the photograph — Garcia claims he was a freelancer and so he owns the copyright; the A.P. maintains that Garcia was in their employ (a good reminder for freelancers to always insist on contracts).]

I’m indifferent to Fairey’s art, but I’m siding with his right to fair use in this case. I see the poster as a new work of graphic art in Fairey’s trademark stylized iconography. Garcia may deserve credit for the source photo, but the case for remuneration seems weak. It would have been polite for Fairey to ask, but I think it would be ridiculous for him to have to license the photo, because he isn’t reprinting or modifying the photo, but using it as a reference to create a transformed visual. If anything, Garcia’s photo has probably appreciated (it’s included in an exhibition at the National Portrait Gallery, and prints are available at Danziger Gallery, NYC) because of Fairey’s appropriation.

Illustrators have always used photographic reference materials. In the olden days, they kept file cabinets called “morgues” full of reference photos, clipped from every imaginable (and probably copyrighted) source. Google Images acts as a giant, searchable “morgue.” It’s a bane and a boon to illustration: it’s the largest, most accessible “morgue” illustrators have ever accessed, and it’s one more nail in the coffin of the industry.

One thing hasn’t changed: Fair Use allows for artists to appropriate existing images if the image is adequately transformed.

I reject the idea that digital processes are inherently less skilled or valid forms of transformation than manual drawing. Those old-tyme illustrators may not have had computers, but that doesn’t mean they didn’t have copying tools, like camera lucidas, tracing paper and light boxes. Drawing plot points over an photo onscreen is not much different than outlining a photo on tracing paper — both require technical skill, artistic decision-making, and manual dexterity (as anyone who’s tried a Bezier tool or Wacom tablet for the first time would agree).

For better or worse, Warhol and Winston Smith lend Fairey more artistic legitimacy. I think appropriation will never seem as subversive as it was during the emergence of Pop Art, but this imbroglio shows that fair use needs to be better understood by all content makers and borrowers. Democracy isn’t the eradication of difference, but the ongoing negotiations between parties to resolve their conflicts.