Does Associated Press Deserve Money for Appropriated Obama Image?

The Associated Press is ready to go to battle against Shepard Fairey, the aritst who created the poster of Barack Obama that because famous during last year's presidential campaign. Fairey has admitted that he based his artwork on an image by AP photographer Mannie Garcia, who photographed then-Senator Obama at the National Press Club in 2006. AP claims copyright infringement, and it wants compensation. Let the debate begin.
     I imagine that many photographers are rooting for AP and the sanctity of copyright protection. But I am not sure that AP will win this case. The agency has some legal hurdles to jump. According to one expert we asked, Fairey's appropriation of the photographic image would probably be allowed under the doctrine of Fair Use, which allows use of copyrighted material for specific reasons such as scholarship or review.
    But even if the Fair Use Doctrine didn't apply, there are other issues facing AP. The expert we contacted wonders how much of the Garcia image contains "copyrightable elements." AP can't copyright Obama's face or expression, and the image was a studio shot featuring specialized lighting.
    Your thoughts?--David Schonauer

Comments

[Joe]

Well I agree that the AP is probably going to lose this too. I guess the main question is when did this image stop being an image the AP shot and when did it become Shepard Fairey's piece of work. It might be altered enough to be Fairey's image now. Another factor may be how much money Fairey made off the image.

[Chris]

The real question is not about Shepard Fairey right now in the first place. The real question is, does AP have the right to go after him. They do not, more than likely, own the copyright.

Here are two questions from an interview with Mr. Garcia.

2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?

I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.

3) So, you own the copyright to the image?

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

The entire interview can be found here.
http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html

As a photographer myself, I guess I would be more concerned with AP trying to appropriate a copyright that was not theirs to begin with.

After which, I would begin talks with Shepard Fairey. All that has been changed is the color and text has been added. I would think that from all of the stickers and posters and t-shirts and everything else, that a hefty sum was made. Why was it that Mr. Fairey felt no concern in taking the image and manipulating the color without permission? I have no real answers, but I do know how important this image has become to a lot of people and a movement. How much did he make and what did he do with the money? If he covered his costs then gave the money to charity, then I would have no dispute with him, but if he is sitting on a ton of it, then I would think I was entitled, considering, without my image, he would not have one. He would have had to get another one, shot by another photographer, and then the argument begins again.

[Andreas Manessinger]

I have seen the original photo on The Online Photographer, and it is important to note here, that Mr. Fairey took a very tight crop.

The original image is, if anything, remarkably unremarkable. The icon, on the other side, is remarkably, well, iconic. The original photo is a plain documetary image, the other is a work of art and it is quite original at that.

Sure, the icon is derived, but it can be argued, that the creative difference between the two easily outweighs the creative height of the original photo.

[Photoguy]

I think that the question is, does Shepard Fairey have an image without Garcia's photograph. If he does not (which he does not) then the idea of compensating Mr. Garcia has to come into play.

[Chris]

This does it for me. I hope that that AP skewers him.

http://www.art-for-a-change.com/Obey/index.htm

[John Jay]

I HOPE that a court would not side with the AP. There is so much added artistic intent in Fairey’s image: the crop, adjusting the angle, choice of color, etc. that it clearly passes the test of new work. Just look at the beauty of the line that forms the mid-tone to highlight transition. This is no simple photoshop filter, it is a creation, that by it's wholly new nature, has evoked a response completely independent of the original photograph. I am an advocate for long and strong copyright, but we must allow creativity to flourish.

[Paul Benjamin]

I think the issue which really trips up the AP and that the defendants lawyers will focus on is the requirement for an infringement to "significantly reduce or impair the copyright holders ability to generate revenue from the work".

In this case I'd go as far as to say the value of the photo has probably gone up, massively...

[MarcW]

Disclaimer: I am an attorney, but I have not read Mr. Fairey's complaint, and am basing my comment on what I have read in a few news articles.

In my opinion - which is not legal advice to anybody - the usage is transformative enough that the AP has no shot at winning this. The poster is pretty damn generic, as you point out - it's an abstraction of a famous person's face in a fairly common pose. (As opposed to Mr. Jay, I think it's both boring and ugly, rather looking like something you might produce by accident fiddling with Photoshop filters, but nobody asked my opinion on that.)

On the plus side, I doubt the poster is entitled to much copyright protection either.

M

[Freddie G.]

If the image was indeed in the public domain when when Mr. Fairey found it, as he claims, then there is no longer any copyright protection at that point! The only variance to this is if the image was stolen and nefariously posted within a public domain without the express permission of and by someone other than the initial copyright owner of the image.

[H. Leslie]

The discussion weighing "...a plain documentary image (whereas) the other is a work of art and quite original at that" against "does Shepard Fairey have an image without Garcia's photograph" is critical in defining our values in this era of phenomenal digital access and should drive formulation of law.

But after reviewing
http://www.art-for-a-change.com/Obey/index.htm ,
it seems very likely that Mr Fairey did no research whatsoever about the copyright owner. If Garcia owns the rights and had shared, through Fairey's initiative, in the success of the image then we wouldn't have a conversation.

My guess is that Mr. Fairey continues a practice of believing that anyone's creative efforts are his for the taking without asking and, if so, should be stopped in his tracks and used as a high-profile example decrying lack of respect for others.

[FreddiG]

a response to mark vallens claims:
http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/

[Ramble]

Have you been following the Shepard Fairey case? What do you think of this?

www.myartspace.com/blog/2009/02/integrity-lost-lawrence-lessig-helps.html

We are all doomed if that is considered fair use! Sucks that it is the AP but it could have been another artist just as easy.

[BuiffSonShido]

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