I’ve been following with interest the news about artist Shepherd Fairey and the controversy surrounding his iconic HOPE poster used by the Obama campaign. The Associated Press is arguing that Fairey’s poster represents an illegal use of copyrighted work. The poster is based on a 2006 photograph by Mannie Garcia, a photographer for the AP.
According to some sources, Garcia has been pleased with the poster and the impact his photograph has had. It seems to be the AP that is pushing for the copyright infringement, claiming that it owns the rights to the image, and that Shepherd must pay usage fees as well as acknowledge Garcia as the original photographer. Shepherd has submitted a pre-emptive suit, claiming that his poster follows “Fair Use” and as such cannot be claimed under copyright.
I don’t claim to have extensive legal knowledge about the case. Carolyn Wright over at the PhotoAttorney Blog does a much better job of explaining the issue and how it relates to fair use. Photo District News Pulse goes even further with an in-depth analysis of whether or not this Garcia photo or another was used as the basis for the poster.
Legal arguments aside, I have to think back to how I as a photographer have felt when my images have been used without permission. Usually I’m pretty ticked off. In a case like this (not that it’s likely to happen) like Garcia I’d probably be flattered and pleased with the impact the image has made (assuming, of course, that it was for a cause I supported.) However, I would definitely want recognition for my work.
On the whole, it appears that Garcia is being pretty cool about this. He is claiming that the AP does not own the copyright for the photo. According to cited sources on San Francisco photographer Thomas Hawk’s blog, Garcia has stated that he was not a staffer for the AP when he took it, that he wasn€™t even an AP freelancer, but rather a temporary hire with no contract and that the ownership of the disputed image belongs to him. All he wants is recognition for the image (which he now seems to be getting), and has claimed that any monies would be donated to charity.
It will be interesting to see how this turns out. Fairey will probably come out looking like a jerk for his use of the photo without acknowledgment. This will probably be just another mark against the Associated Press of their overzealous protection of what they think is their property. About the only one who comes out looking good is Garcia for his reasonable attitude and willingness to work with both Fairey and the AP to get the issue resolved. It’s an interesting attitude to take, since he is the one most ill-put-by in this whole controversy.
Now I just wish someone had seen fit to use my photo of Obama…
One thought on “Hope and Copyright”
I expect it boils down, in part, to whetheer Mr. Fairey’s work is close enough in resemblance to be considered to still be Garcia’s photo. How this is decided is above my pay grade.
There are differences with the original. The background is completely different. The color scheme is now a monochromatic, more hard light approach. Surrounding elements are quite different.
There are arguments for it being still the essence of the photo. The gesture of the photo (the line of the head, the expression, the shadow/highlight composition) is the same as the photo, meaning that this would be factors in favor of it still being Garcia’s image.
Were I the judge, I’d argue that the image has been sufficiently changed so as to avoid copyright. However, I am not, and there is case law that would be far more authoritative then I am. It’s a tough issue. This is NOT IMO out and out theft of someone else’s image. But the ancestery of the image is clear too.