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I'm a little concerned that in the present climate he's going to flat-out lose. In a way this is one of the few cases that has a built-in constituency, but it's also pretty clearly a derivative work that is not a parody.
I'm really interested in copyright issues and hate to side with "the man", but I think Shepard Fairey is such a douche it's awfully hard to side with him. His history with neglecting to attribute the sources of his images is extensive and I'd be pretty pissed if he used something of mine and made a shit-tonne of money off it. His style is SO predictable and played out anyway.
(That SFGate article is a little weird -- I think what Fairey does, essentially use his miniscule amount of talent and large amount of hubris to promote himself, is VERY different from a mom uploading a 30-second video of her toddler dancing to a major label artist's music to Youtube. DOES NOT COMPUTE.)