To be blunt - NORML's use of the Lisa Jack image of Barack Obama is, in this author's opinion, plain and simple, copyright infringement. Photo District News did two great pieces on this - From Hope to Dope: Another Obama Poster Dispute and Getty: We'll Fight NORML's Copyright Infringement, so I won't re-hash what they wrote here.
What I will say about the image at right, is that the poster is an illustration SURROUNDING a photographic image. Unlike Shepard Fairey's claim of fair-use and derivative use, where (Fairey claims) the resulting image was so significantly different that other than angle of view expression/subject, the resulting work was not substantial enough that the original photographer has a claim (this is the inaccurate position of Shepard Fairey), this use has a hole in the center they filled with a photograph. Other than applying a green duotone tint to the original black and white, it's a photograph. They added in a swirl of smoke, but it's a photo, plain and simple.
Since Getty is quoted in the PDN piece as saying "will aggressively pursue this matter as the copyright representative of the artist" the question at hand will be the soundness of Getty's copyright registration. If they simply included the Jack images in their own registration process, as a part of a "database addition" registration (which some agencies have done in the past), where they register multiple photographers' work in a single registration, that will be a big problem. If, however, Jack had registered the work herself, Getty will have substantial ground to stand on. The strength of this case will test Getty's (and other agencies) copyright registration procedures, if it goes to court, which is looks like it might. If Getty does go to court, and loses over a questionable registration, it could well signal open season on infringements on Getty and other agencies. Look to Getty to try very hard to settle this case quietly.
Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.