One of the clearest cases of fair use. Hands down this is obviously a case where someone is trying to steal an artist's right to comment on the world around him. A likeness is not something that can be protected with a copyright.
Fairey used the Garcia Photograph as a visual reference for a highly transformative purpose;
Fairey altered the original with new meaning, new expression, and new messages; and Fairey did not create any of the Obama Works for the sake of commercial gain.
The Garcia Photograph had been published well before Fairey used it as a visual reference, and is a factual, not fictional or highly creative, work.
Fairey used only a portion of the Garcia Photograph, and the portion he
used was reasonable in light of Fairey’s expressive purpose.
Fairey’s use of the Garcia Photograph imposed no significant or cognizable harm to the value of the Garcia Photograph or any market for it or any derivatives; on the contrary, Fairey has enhanced the value of the Garcia photograph beyond measure.
Fairey and Obey Giant are therefore entitled to a declaratory judgment that the use of the Garcia Photograph as a visual reference in creating the Obama Works (as identified in Exhibits B-G to this Complaint) is protected by the Fair Use Doctrine.