Shepherd Fairey Strikes Back, Counter Sues the Associated Press

Was the Iconic Shepherd Fairey Obama Hope Image Taken by Freelance Photographer Mannie Garcia?Last week I reported on the continuing controversy regarding Shepherd Fairey’s iconic image of President Barack Obama. The Associated Press had declared copyright over the image that Fairey used to make his HOPE image and now in a pre-emptive strike, Fairey has filed a lawsuit seeking to legally have his art declared as fair use.

From the NY Times:

“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.” “

It will be interesting to watch how the courts rule on this one. Still in question as well is whether or not the A.P. even actually own copyright on the original image given that photographer Mannie Garcia took the image without any contract with A.P. and is not an employee or even a freelancer for A.P.

Artist Shepherd Fairey Arrested in Boston Friday Night

Hope Will Be Towed Away

"The people who truly deface our neighbourhoods are the companies that scrawl giant slogans across buildings and buses trying to make us feel inadequate unless we buy their stuff. They expect to be able to shout their message in your face from every available surface but you’re never allowed to answer back. Well, they started the fight and the wall is the weapon of choice to hit them back.

Some people become cops because they want to make the world a better place. Some people become vandals because they want to make the world a better looking place."

— Banksy, Wall and Piece

Shepherd Fairey, the famous graffiti artist responsible for Obey as well iconic imagery used in the Barack Obama presidential campaign was arrested in Boston on Friday night. Fairey was in town for an opening of a new show of his, "Supply and Demand," at the Institute of Contemporary Art. He was arrested on two outstanding warrants for graffiti in Boston.

Fairey told the Los Angeles Times last year that his "Obey Giant" street art campaign had led to his arrest many times.

When Fairey came to San Francisco for a show at the Shooting Gallery late last year the entire City was bombarded with his art on everything from the back and fronts of billboards to abandoned gas stations. Most of his work in San Francisco last year was around his Obama images.

Earlier this week I blogged about an ongoing dispute between Fairey and the Associated Press regarding the source of his famous Obama HOPE image.

In another high profile graffiti arrest about two weeks ago, 7 high profile graffiti taggers from the crew MTA were arrested in Los Angeles.

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.

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

Was the Iconic Shepherd Fairey Obama Hope Image Taken by Freelance Photographer Mannie Garcia?I shot the above photo of the HOPE posters back when Shepherd Fairey had a show in town late last year and plastered San Francisco with various images of his.

Tom Gralish over at the Philadelphia Inquirer has a blog post out today where he claims that the iconic and famous Obama HOPE Image, which now hangs in the National Portrait Gallery and is credited as being created by artist Shepherd Fairey, may have actually been taken directly from a photograph taken by Freelance Photographer Mannie Garcia. Although I’m not aware of Garcia ever being attributed as the source of this image, Gralish did a great bit of his own detective work to come up with this conclusion. I have not seen any comments anywhere yet from Garcia on the image which will likely go down as one of the greatest and historical works of art of the past century.

Interestingly enough, it also appears that the original photo was not taken at some philosophical moment where Obama was contemplating the future of our great nation or delivering some great speech, but rather when he was probably listening to either Republican Senator Sam Brownback or possibly actor George Clooney.

From Gralish:

“The photo was made by freelance photographer Mannie Garcia who was on assignment for the AP in April of 2006, where a National Press Club news advisory alerted the media that, Academy Award Winner George Clooney will address National Press Club on hisrecent visit to war-torn Darfur and will release video footage from his trip to Sudan. Clooney will be joined by U.S. Senators Barack Obama (D-Ill.) and Sam Brownback (R-Kan.), co-sponsors of S. 1462, The Darfur Peace and Accountability Act, and co-sponsors of amendments to increase funding? for peacekeeping operations in Sudan.”

So, it looks like the image that poster artist Shepard Fairey said looked presidential, telling the Washington Post: “He is gazing off into the future, saying, ‘I can guide you,’ ” actually showed our new president listening to George Clooney. Or, probably more likely, fellow Senator Brownback.”

Richard Prince would be proud.

In related news today, it was also uncovered that the famous “Joebama” poster, created by artist Joe Reifer, interestingly enough, also was lifted from a photograph of Reifer taken by yours truly in 2007 at the Lucky JuJu Pinball Gallery. 😉 (If you’d like to create your own Obama Hopeish poster from your own image you can do that here).

Update: It seems, from Garcia’s website, that representatives of Fairey’s yesterday confirmed that the original image did in fact come from one of Garcia’s photographs:

The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better know now as the “HOPE” and “PROGRESS” posters., thanks Claytonia!

Update 2: NPR has a podcast audio interview with Fairey where he discusses this image from yesterday here. Thanks, David!