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I count myself in the slam-dunk camp, but only because I think this particular case is a lot simpler than my legal brethren make it out to be. Generally, in my experience there's only three questions that matter in any type of "fair use" analysis, the most important being why. Uses of works for purely commercial purposes don't fare nearly so well against uses for political speech or social commentary, which garner way more First Amendment protection. Here, Fairey clearly has the edge, considering that all of his efforts AND all of his profits were directed at "speaking out" in one of the most important national elections of our time. Fairey also prevails on the second question: Who benefits from the altered work. For the most part schools, museums, churches and not-for-profit organizations (including the Democratic Party) are given a lot more leeway than outright commercial ventures (like the Associated Press). Finally, how the original work was altered is important: The more artistic effort and expression used to transform the work, the more likely fair use will be found. Mostly everyone believes Fairey's work is fairly transformative; he therefore wins on all three counts.
I still can't help wondering, though, if so many people would be so morally sure of themselves if, for example, Fairey had been taken to task for infringing upon the work of an equally respected peer instead of by a big, bad, corporate media bully. Or, if Fairey had decided instead to keep all the profits for himself. Consider for a moment the long line of music-sampling cases pitting one commercial musician against another of similar stature. The courts have been all over the map in these rulings because they, like me, sense danger in embracing an all-out extension of the fair use doctrine. I'm still planning to root for Fairey since, like every other red blooded American, I will always take up for the underdog. I'm just saying, regarding this particular Shephard-versus-Goliath case, to be careful what we pray for. ■