The Fairey dispute illustrates how copyright‘s conceptual tools
are being exhausted by the intersection of art, technology, and
culture—if those tools were ever adequate to begin with. When I
teach copyright law, I show the original Obama photograph and the
Obama Hope poster to my students. Even before we get to a
discussion of whether the former is copyrightable or the latter
infringes, their reaction is this: Anyone could have produced the
Obama Hope poster using some cheap or even free software. Fairey is
no artist.3
And anyone could have taken the Obama photograph. How
is that art?