The Associated Press Says That They Own Famous and Iconic Shepherd Fairey Obama Image, Photographer Mannie Garcia Says, “Not So Fast”

Was the Iconic Shepherd Fairey Obama Hope Image Taken by Freelance Photographer Mannie Garcia?

The Associated Press is out this morning claiming copyright ownership to what will certainly be considered one of the most famous and important images of this century.

The image in question was also one of the most used images in the Barack Obama Presidential Campaign and also now sits in the National Portrait Gallery in Washington DC. The image was seen all over the United States, from graffiti in San Francisco to dorm rooms in Iowa. And apparently now the Associated Press has decided it wants to muscle in on a little of the ca-ching going on.

From CNN:

““The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement released Wednesday. “AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

Anthony Falzone, Fairey’s attorney, says fair use protects his client’s rights from using the photograph as a basis for his image. The concept of fair use allows breaches of copyright law based on the degree to which the original image is used, among other factors.

Fairey, a Los Angeles street artist, has said he found the image online and created his now-famous depiction in early 2008. He says he has not profited at all from the work, which he donated to the Obama campaign.”

Fairey is claiming fair use rights, but the bigger question really is does the Associated Press even *own* this image at all. If it turns out that they do not, they may come out looking like even more like the idiots that they were painted out as a while back when they decided that they wanted to start going after bloggers for quoting their stories.

Both Shepherd Fairey and the photographer who took the original image, Mannie Garcia, agree that the image was originally taken by Garcia. And now Garcia is saying that he owns copyright on the image not the Associated Press. It also seems that Garcia is a really cool guy and while wanting to be recognized as the original photographer, he isn’t trying to milk this thing for all it’s worth personally like your friends over at AP.

In an interview over at Photo Business Forum, in fact, Garcia has said that the majority of any money due him from this photo at all he’d like to see go to charity.

“Now, monies – monies that might be made by me signing my photograph. I am concerned, that the image out there – I would like very much to figure out a way that my signature on a photograph that I made of then Senator now President Obama, that maybe the monies = most of it – could be donated to the American Red Cross, children’s cancer research, and women’s breast cancer research. This is not about me making money off this, it’s about recognition. I made the most iconic image of our time, and I’d like it to make a difference, not make me money. I’m a blue collar photographer – I am out there on the grind every day. I spend more energy looking for work than doing work. I just want Shepard Fairey to say “alright, you’re the guy. Thank you.””

In terms of the APs claim of ownership of the image, Garcia states 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.

And I think he just may be right on this. Without a contract with him signing over his rights to his photos to AP, as far as I’m aware Garcia ought to own the rights to his work.

Now there are a lot of ways this might unfold. It might be that it doesn’t matter if the AP or Garcia took the original image, that it’s use might be considered fair use. I’m not an attorney, but I think there is a real case to be made here.

It might also turn out that AP has no rights to the image. They have no contract with Garcia and sans contract any ownership of the image likely would go to him.

Personally I think it’s very unlikely that the AP will get control over this very popular image. Which means that they may end up looking like money grubbing jerks yet again if/when they lose. Even if they win, enough people are probably impressed with the way that Fairey gave all of the money made on the image to the Obama campaign that they’ll still end up looking bad trying to squeeze him.

If the AP were smart, I’d think that they’d be better off right now from the start agreeing that no money would go to them if they do have any coming, and that instead any money raised would go to charity and Garcia. Garcia could of course also choose to give his portion largely to charity as well if they recovered any.

It will be interesting to see how this one turns out.

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16 Comments

  1. B.L. Ochman says:

    Win or lose, AP comes off looking foolish and a bit desperate, just as they did when they said they’d go after bloggers and then backed off when they were roundly derided.

    I hope Fairey doesn’t have to bear the cost of this suit!

    Intellectual property issues surely will be the biggest of the decade as more of it is spread worldwide.

  2. eddypcj says:

    “Fairey, a Los Angeles street artist, has said he found the image online and created his now-famous depiction in early 2008. He says he has not profited at all from the work, which he donated to the Obama campaign.”

    While the AP is obviously on shakey ground, I would dispute the fact that Fairey has not profited from the work, even though it started out as a free effort: as far as I know he has sold signed prints at quite a hefty sum, not to mention the incredibly massive acclaim the image has gotten him.

    having said that, it’s great that his image was ever made, and benefited Fairey as much as it did. As for the original photographer, he probably has grounds to claim some sort of compensation…

  3. Jason says:

    Fairey is just the connection point. The AP is going after the money made off of the image by the Obama campaign and other organizations that raised money off of the image like MoveOn. I’m not a copyright lawyer, but just looking at the two images they are so close in structure, I wouldn’t support “fair use”. It seems like Garcia should get some money which he could then donate to charity.

    Next time, maybe Fairey will make sure the images he uses are creative commons…

  4. Dave Fitch says:

    “Fairey is claiming fair use rights”

    No such concept exists in US copyright law. There is a fair use defence, but there is no ‘right’. There is a big the difference.

    Certainly looks like Fairey has form, anyway… see http://www.art-for-a-change.com/Obey/index.htm

  5. Alex says:

    I think Manny is being pretty cool in not going after the AP/Fairey for personal gain in this, but I think this:

    “I made the most iconic image of our time, and I’d like it to make a difference, not make me money.”

    is an overstatement. He did not make the most iconic image, Fairey did. I’d venture to say no one cared about that particular photograph, as evidenced by how long it took anyone to figure out that it was the basis for the Fairey image.

    Not to mention that it already has made a difference, just in helping Obama get elected, which it undoubtedly did.

    It will be interesting to see how this plays out, who ends up with “ownership” of the image and who’s making money off it.

  6. ThePete says:

    This is a great example of how copyright law, taken to the extreme, creates more trouble than it is worth.

    It seems odd to me that Fairey can’t use a photo reference but the AP can own photos of people’s faces. I created my face–if I show up in an AP photo I should get a cut, right? Or, because I happen to be a witness to a news event, I have no right to demand compensation for my photo being taken?

    Seems like we all need to chill out and let *some* copyright infringement go.

    If I were the AP, I’d start profiting off of Garcia’s original photo by releasing a photobook of Garcia’s work, prominently featuring the photo that would serve as a reference for Fairey’s work. Hell, since Fairey doesn’t claim to control the image, why couldn’t the AP include it in the book and profit from the painting themselves?

    And hey, isn’t the AP a non-profit? They sure seem a little obsessed with the word “profit.”

  7. Joseph Bolstad says:

    ThePete and Alex both made great points. Manny’s full photo shows Obama sitting next to George Clooney. It is not iconic. It is a very forgettable image. I’m sure countless other, nearly identical photos, were taken by other photographers. Thus, Fairey’s poster is transformative.

  8. Anon says:

    Fair use argument is better. The picture can be proven to be AP as it was work-for-hire.

  9. Renee says:

    Well … AP might own the image after all. Copyright law gives ownership of all “works for hire” to the employer. Basically, employees automatically lose all copyrights under federal law. So, if AP can say this was a work “for hire” then the author loses everything.

  10. Voice says:

    @Anon:
    Just a few quotes from the article…

    “…the image was originally taken by Garcia. And now Garcia is saying that he owns copyright on the image not the Associated Press.”

    “In terms of the APs claim of ownership of the image, Garcia states 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.”

    “And I think he just may be right on this. Without a contract with him signing over his rights to his photos to AP, as far as I’m aware Garcia ought to own the rights to his work.”

    If Garcia is actually the photographer who took the picture, and there was no contract transferring the copyright of the picture to the AP, the AP has absolutely no claim on the photo, much less Fairey’s poster.

  11. spunk brophy says:

    What difference does it make if anyone, Fairey or Garcia, makes money off of this? Why is that even important to this story?
    When did it become morally right for artists to give ALL their money away to charity? No one else is expected to do that. How many nurses, attorneys, ditch diggers, computer programmers, etc. do you see giving all their money away?

    It’s my vision that all artists make a living off of their talent and that the amount of effort they put into their career creates a stream of income just like every other career path does.

    Regardless of how this shakes out, I’m stoked to see Shep Fairey and Garcia get loads of marketing out of this.

    Legally speaking, If Garcia was indeed a freelance photographer and not an AP employee, there is no question – he owns the copyright. (Unless he signed away his rights to AP. Then they have a case.)

  12. Manny says:

    What about Andy Warhol, Liechstenstein, and any number of contemporary artists who copy images from newspapers and other media? What’s the difference

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