This is a subject I’ve gone around on for years on PhotoshopTechniques.com. The frame of Fairey’s argument is that his derivative work is covered by fair use. AP, on the other hand, probably wants copyright on every image that comes through its service. I haven’t read up on the particulars, so this is just a gut reaction.
The modified image came out some time during 2008, and apparently originated with a photo taken in April of 2006 by AP photog, Manny Garcia. Regardless of the avalanche of new fame garnered by Fairey for this work, he is a professional, working artist. He of all people should have known to keep track of the appropriate credits due, and hiding under ‘fair use’ is a crock, in my humble opinion. The image was not created for personal use or education, and the photo used, once matched, is clearly identifiable.
My book covers a decent amount of copyright considerations, being that Dan and I focused on composite work – images made by manipulating and combining several other images. I really feel that Fairey should apologize and work out some kind of compensation to AP’s photo dude. It’s the professional thing to do.