[FC-discuss] Artist of iconic Obama image sues AP to protect his fair use of original photograph

[Matthew Senate]

Fingers crossed.

> I am glad that this will be heard by a judge. I think there is a
> strong chance that it will be deemed fair use.
>
> Seems worth highlighting that the photographer is happy about the
> transformative re-use:
>
>>>
> [Garcia] added, "If you put all the legal stuff away, I'm so proud of
> the photograph and that Fairey did what he did artistically with it,
> and the effect it's had."
> <<
>
> We've seen that before. :)
>
>
>
> Kevin
>
> -
>
>
>
>
> On Tue, Feb 10, 2009 at 3:56 PM, Jacob Caggiano
> <Jacob at fishbowlescape.com> wrote:
>>
>>
>> From the New York Times
>>
>> http://www.nytimes.com/2009/02/10/arts/design/10fair.html
>>
>>
>> February 10, 2009
>>
>> Artist Sues The A.P. Over Obama Image
>>
>> By RANDY KENNEDY
>>
>> In a pre-emptive strike, the street artist Shepard Fairey filed a
>> lawsuit on
>> Monday against The Associated Press, asking a federal judge to declare
>> that
>> he is protected from copyright infringement claims in his use of a news
>> photograph as the basis for a now ubiquitous campaign poster image of
>> President Obama.
>>
>> The suit was filed in federal court in Manhattan after The Associated
>> Press
>> said it had determined that it owned the image, which Mr. Fairey used
>> for
>> posters and stickers distributed grass-roots style last year during the
>> election campaign. The photo, showing Mr. Obama at the National Press
>> Club
>> in April 2006, was taken for The A.P. by a freelance photographer,
>> Mannie
>> Garcia.
>>
>> According to the suit, A.P. officials contacted Mr. Fairey's studio late
>> last month demanding payment for the use of the photo and a portion of
>> any
>> money he makes from it.
>>
>> Mr. Fairey's lawyers, including Anthony T. Falzone, the executive
>> director
>> of the Fair Use Project and a law lecturer at Stanford University,
>> contend
>> in the suit that Mr. Fairey used the photograph only as a reference and
>> transformed it into a "stunning, abstracted and idealized visual image
>> that
>> created powerful new meaning and conveys a radically different message"
>> from
>> that of the shot Mr. Garcia took.
>>
>> The suit asks the judge to declare that Mr. Fairey's work is protected
>> under
>> fair-use exceptions to copyright law, which allow limited use of
>> copyrighted
>> materials for purposes like criticism or comment.
>>
>> "Fairey did not do anything wrong," said Julie A. Ahrens, associate
>> director
>> of the Fair Use Project and another of Mr. Fairey's lawyers, in a
>> statement
>> on Monday. "He should not have to put up with misguided threats from The
>> A.P." Paul Colford, a spokesman for The A.P., said on Monday that the
>> agency
>> was "disappointed by the surprise filing by Shepard Fairey and his
>> company
>> and by Mr. Fairey's failure to recognize the rights of photographers in
>> their works."
>>
>> He added: "A.P. was in the middle of settlement discussions with Mr.
>> Fairey's attorney last week in order to resolve this amicably and made
>> it
>> clear that a settlement would benefit the A.P. Emergency Relief Fund, a
>> charitable fund that supports A.P. journalists around the world who
>> suffer
>> personal loss from natural disasters and conflicts."
>>
>> Mr. Fairey, 38, has become one of the most visible practitioners of a
>> guerrilla-style art that has grown out of the graffiti scene but has
>> expanded beyond paint to include a wide variety of techniques and
>> materials,
>> producing works usually displayed illegally on buildings and signs.
>>
>> Mr. Fairey decided to create the image on his own before contacting the
>> Obama campaign, which welcomed it but never officially adopted it
>> because of
>> copyright concerns. Before the election, Mr. Fairey was best known for
>> his
>> fake-advertising stickers and posters, pasted in cities across the
>> country,
>> showing an ominous, abstracted image of the wrestler Andre the Giant
>> along
>> with the word "Obey."
>>
>> Mr. Fairey is the focus of a retrospective that opened last week at the
>> Institute of Contemporary Art in Boston. (In a development that was not
>> much
>> of a surprise, he was arrested there on Friday, accused of illegally
>> pasting
>> his work in places around Boston; he has pleaded not guilty.) A collaged
>> work made by Mr. Fairey based on his Obama poster was acquired last
>> month by
>> the National Portrait Gallery in Washington, part of the Smithsonian
>> Institution, and placed in its permanent collection.
>>
>> After Mr. Obama's victory, speculation increased about which picture had
>> served as the basis for Mr. Fairey's posters. In interviews the artist
>> said
>> that it was one he had found on the Internet. Bloggers, including the
>> Manhattan gallery owner James Danziger, pursued several leads until,
>> according to the lawsuit, Tom Gralish, a Pulitzer Prize-winning
>> photographer
>> for The Philadelphia Inquirer, helped track down a photo by Mr. Garcia
>> that
>> showed Mr. Obama sitting beside the actor George Clooney at a 2006 event
>> about Darfur at the National Press Club.
>>
>> Further complicating the dispute, Mr. Garcia contends that he, not The
>> Associated Press, owns the copyright for the photo, according to his
>> contract with the The A.P. at the time. In a telephone interview on
>> Monday,
>> Mr. Garcia said he was unsure how he would proceed now that the matter
>> had
>> landed in court. But he said he was very happy when he found out that
>> his
>> photo was the source of the poster image and that he still is.
>>
>> "I don't condone people taking things, just because they can, off the
>> Internet," Mr. Garcia said. "But in this case I think it's a very unique
>> situation."
>>
>> He added, "If you put all the legal stuff away, I'm so proud of the
>> photograph and that Fairey did what he did artistically with it, and the
>> effect it's had."
>>
>> _______________________________________________
>> Discuss mailing list
>> Discuss at freeculture.org
>> http://freeculture.org/cgi-bin/mailman/listinfo/discuss
>>
>>
> _______________________________________________
> Discuss mailing list
> Discuss at freeculture.org
> http://freeculture.org/cgi-bin/mailman/listinfo/discuss
>