LOL Yea, but that AP photo isn't the only situation were Barack Obama has struck that pose; Shepard's attorneys could just say that.
Hahaha the argument is not whether or not he used the photo, he admits that that is indeed the photo he used. Trying to dispute that would just stupid legally. What he is saying is that under fair use, artists are allowed to use photos for inspiration, even if they are copyrighted.
Well, I actually have some sort of opinion.. I actually spent about a half-year studying this type of thing.. not only within intellectual property (copyright law, trademark law), but also fair use of parodied imagery, or inspired graphics like Shepard does.. and while I do think the AP does have rights to enforce against someone using their work without permission, the law does incorporate a fair use principle which encourages Shep to do what he does for the sake of ART. And really, while Shep got a big boost out of it for his name/brand/career, it was really for art's sake, to help us usher in a new administration... it wasn't for anything greedy. And that being said, I do think Shepard was justified in using this photograph as the basis for his work. Whether or not he paid for the license.
AP isn't necessary the evil here though.. they are just trying to protect themselves. It sets up a precedent, where if they let Shep slide with that one, then a whole mess of other artists can come in, rip their photos, and claim they were using it for the same intents and purposes also. And at the end of the day, AP makes a living off of securing rights to those photographs.