The inquisitr reports: Fairey’s attorney said that they believed the use of the image falls under fair use, and Fairey did not receive any of the money raised from the use of the image.
The criteria for a "fair use" defense under 14 USC 107 include:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
Whether Fairey received money is not so much the issue as much as whether the purpose was commercial. "Selling" a candidate likely is commercial.
IPBiz suspects some resolution will occur before this matter gets too far.
See previous IPBiz post
AFP sues Google over Google News for copyright infringement in D DC