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

[Fred Benenson]

Yes, I think its a really good and proactive move, but there are no sure
things for fair use. I have no idea how this is going to turn out though I'm
obviously for Fairey winning.

What is interesting is that the original photographer is claiming AP doesn't
even own the rights (no work for hire contract signed, etc.):

http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html

F



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2009/2/10 Matthew Senate <mattsenate at berkeley.edu>

> 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."
> >>
> >> _______________________________________________
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> >>
> >>
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