Shepard Fairey, the artist, used an Associated Press photo without permission in a famous Barack Obama campaign poster. Should he pay?

Mr. Fairey has a graphic design company that sells posters of enhanced photos belonging to others. By all accounts it is a highly successful business. It sold $400,000 worth of Obama posters.

AP wanted to be paid for its photos. It called Mr. Fairey’s representatives to work out a deal. While negotiations were pending, much to AP’s surprise, Mr. Fairey sued AP as a pre-emptive strike.

AP was taken aback. It is not ordinary practice to be sued in the middle of a negotiation (AP then counter-sued). But this is not an ordinary case. It turns out it is a test case of sorts for Stanford Law School’s Fair Use Project. The project is the brain child of Lawrence Lessig, the well-known intellectual property advocate.

Mr. Lessig believes with the advent of the Internet, we should have less copyright protection. With less protection, creativity will be encouraged and communication enhanced.

A way to achieve this result is to bring test cases to limit the protection copyright provides. The more use of copyrighted works he can persuade courts to permit, the better.

And so if this group can persuade a court that it is okay for Mr. Fairey to use a copyrighted photo, that is a step forward. In order to win it has to prove Mr. Fairey has been fair in use of the copyrighted photo.

The photo in question is one of the Senator Barack Obama, pensively listening in 2006 to George Clooney on Dafur at the National Press Club. Mannie Garcia, the photographer, said he went to great length to take this photo.

“I’m on my knees, I’m down low, and I’m just trying to make a nice clean head shot. And I’m waiting. I’m looking at the eyes . . . . I’m waiting for him to turn his head a little bit . . . . I’m just looking for a moment when I think is right . . . and then it happened. Boom, I was there. I was ready” (NPR Fresh Air, Feb. 26, 2009).

Mr. Fairey downloaded the photo from the Internet, cast Mr. Obama in red, white and blue tones, and added “Hope” underneath. The poster became a campaign icon.

Mr. Fairey maintains what he did was “fair.” Through his creative talent he made the photo into something else – a political statement. Mr. Garcia can make a similar point, his photo is a creative work too. He can claim Mr. Fairey has stolen his creativity.

In the art world there is a question generally as to how creative Mr. Fairey is. Milton Glaser, the noted graphic designer, has said “I find the relationship between Fairey’s work and his sources discomforting. Nothing substantial has been added.”

Mark Vallen, the art critic, says “Fairey simply filches art works and hopes that no one notices – the joke is on you . . . . I have never seen any evidence indicating Fairey can draw at all. Even the art of Andy Warhol, reliant as it was on photography and mass commercial imagery, displayed passages of gestural drawing and flamboyant brush strokes.”

Mr. Garcia’s photograph appears to be not just any old photograph. Mr. Obama has been caught at a particular moment that shows his contemplative side. It has been exhibited in galleries. It is not untoward to say that if AP had made a poster of the photo with HOPE it would have been popular.

Not as popular as Mr. Fairey’s in all likelihood. The point is, however, that Mr. Fairey’s poster may not be that much different than the original photograph. AP licenses its photos to others. It has a going business from its license fees. When someone like Mr. Fairey uses its photos without paying, it undermines this business.

Considerations of this sort will be relevant to how a court decides this case. In deciding what is fair, it must consider principally whether Mr. Fairey’s work is “transformative.” In other words, has Mr. Fairey transformed the AP photo into something else that has new meaning and expression.

If he has not, he will lose. This is because whether a work is transformative is a very important factor (not the only one) in deciding whether there is a copyright violation. If someone has taken the guts out of someone else’s work he has to pay. If he has created a new work such as, perhaps, Andy Warhol’s use of a series of Marilyn Monroe photos, he does not.

Mr. Fairey does not create his posters solely to hang up in an art gallery. He makes them also so that his merchandizing company can make money. This fact does not help his case that he is a struggling artist trying to protect his creativity.

A court that decides this case is caught in a difficult position. It has to make an artistic judgment which it may not be qualified to do.

And when all is said and done, it may conclude it’s a tie. In baseball – “the tie goes to the runner.” If the batter arrives at first base at the same time as does the ball, it’s a tie, but the runner wins. He put the ball in play.

By this standard AP wins. Without AP’s photo, Mr. Fairey has no poster. Under these circumstances why is it not fair to ask Mr. Fairey to pay AP for the photo? After all, it was AP that put the ball in play, not Mr. Fairey.

James C. Goodale is the former vice chairman of The New York Times and producer/host of the television program “Digital Age.”