The Obama campaign knew all along — so for like a year now — that the poster was based on a copyrighted AP image, reports, uh, AP, which is why they never used his original poster. Instead, they had Fairey design a separate poster based on a picture they had rights to.
But AP didn't act until now, two weeks after a photojournalist blogger identified the wire service's shot as the basis for Fairey's work. So Fairey's theft of AP's intellectual property was so obvious and atrocious that AP didn't notice it occurred until it was pointed out to them, one year after the fact.
Fairey said he didn't make money off of the image. And it's hard to see how AP lost any money off his use: the wire service's usual customers — newspapers, magazines and television stations — would generally be loath to substitute partisan iconography for a straight photograph.
Also, the poster was enough of an artistic advancement on the original to be featured at the Institute of Contemporary Art in Boston and, in a different format, at the National Portrait Gallery in Washington.
All of these factors would be considered in determining whether Fairey's use of AP's image constitutes fair use, as his lawyers are stating.
AP's ridiculous whining about Fairey extends its tradition of acting like a condescending, sanctimonious tool when it comes to copyright and the internet and of having no clue what the hell it's doing online, with whom, ever.