Thursday, February 5, 2009

10 Questions for Mannie Garcia

Mannie Garcia has been identified as the photographer who produced the now iconic American image of Barack Obama. The image, taken at the National Press Club in 2006 of then junior Senator Barack Obama, was a part of work he was doing with the Associated Press. The image, at right, and with the inset poster of the image as it was used for both the HOPE and PROGRESS posters. This image, that Shepard Fairey used as the basis for his artwork which has generated hundreds of thousands of dollars in revenue for Fairey, and others. So, we wanted to know from Garcia directly, what was going on for him.

Since I have known Mannie for probably 20 years (that's him at left, in the desert on assignment - used with his permission!), I thought I'd get in touch with him following the previous article, to see how things were going. Mannie has been freelancing with Washington DC as his common ground for almost 30 years, and he's travelled the globe on assignments for a wide range of clients, causes, and so on.

As such, we've gotten him to give us time to answer 10 questions. Here they are.

(Continued after the Jump)

1) Is the now famous photograph used as the basis for the Shepard Fairey artwork, in fact, taken by you?
Yes. it is. I was informed by James Danziger who represents the art gallery that represents James Fairey on January 21, 2009, while I was on White House Duty, that the photograph used by Mr. Fairey was in fact, based upon a photograph I made in April of 2006.
2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?
I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.
3) So, you own the copyright to the image?
The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.
4) Are you interested in precluding further use of your photograph in this manner?
That's a hard one. I'm concerned about the usage of the photograph in a number of commercial ways that I've seen it on the street here in Washington DC. I don't know how it's being used in other parts of the country, or the world. I'd like to talk to the people responsible for putting it out.
5) In the future, artwork carrying your signature along with that of Fairey could be very valuable. What are your thoughts on this? Any plans?
I realize, based upon conversations I've had with people at the AP and Danziger studio, that the photograph that I made of then Junior Senator from Illinois Barack Obama, that it has significant value with my signature. 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."
6) I've known you for many years, and this is consistent with who I know you to be, karmically speaking. Talk a bit more about your efforts to make a difference through your photography?
I'm a buddhist, and I believe in compassion, and the suffering of sentient beings, my teacher Holiness Penor Rinpoche. I asked him once when I was in India talking to him - "I make some pretty ugly pictures - they're brutal, they're ugly. People suffering. I don't want to make these images anymore." he said "you need to make these images. You need to make people in the world see this, so they will help in some way. I want you to continue doing what you're doing. Recording the suffering, the misery - we, in the world, will all benefit, hopefully in a positive way." That way - I don't want this to sound totally weird, but, basically, my teacher has said "keep doing what you're doing." People are reacting based upon those images. It's a strange dichotomy there.
7) It sounds like the AP has been receptive to you and this issue.
The AP has been receptive to me and this issue. I've received assurances from two people at AP higher up, that said they would "take care of me", and I have no reason to doubt them. I've had conversations with both of these individuals and I have no reason to doubt tha this is accurate and true.
8) This seems like it is a pleasant situation, where the AP has previously come across as hard-nosed. Is this the newer more friendly AP?
I don't know if this is the newer and friendlier AP. I believe this is a unique situation. It's a one-fer. It's not a two-fer. It's a unique situation, and it calls for some very unique solution to the problem that we're facing. Certainly it's going to raise some eyebrows here and there. This is unique. This is not typical. This is different, and it has to be treated in a unique way. you can't treat this generically, maybe as the AP has treated things in the past. This is very unique.
9) So you are pleased with how things are going?
Honestly, no I am not pleased with how things are going. I think things could be going in a more positive way. Meaning, I want to be kept more in the loop with things. I know AP management is keeping me in the loop, so sometimes I have to ask questions more than once to get an answer. I honestly believe that AP is doing it's best to resolve this situation in a fair way. I mean fair with Mannie Garcia, fair with Shepard Fairey, and all of that. Basically, I hope that all turns out well with all parties concerned.
10) So are you interested in being a part of the historic team documenting the President or Vice President in this new administration?
Yes, I am. And yes, I applied. I applied well before I knew about any of this - the revelations about the Fairey poster. I would be honored to be a part of the White House photographic team. Especially if I were a part of the team documenting Vice President Joe Biden. He is going to be so cool to cover. I think this administration is going to do so much, so yes, I would be honored if that happened.


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22 comments:

gene x hwang / orange photography said...

Thanks for this great interview with Mannie. I really like his approach to this and his photography and can relate to it very closely myself.

Anonymous said...

John

Mannie and I have been friends since we met in Germany back in the 1980s, a year after he made photos of the Ramstein Airshow Disaster winning the World Press Gold Medal for spot news, and we have remained close keeping in touch no matter where in the world either of us are. It's an honor to call a straight up guy like him a friend.

I'm also glad to see his side finally get out there in the public.

I keep reading comment after comment on different stories -- not here as much -- of people bashing him as a whiny photographer just wanting his part of the pie. If people knew Mannie they would understand how untrue him wanting money or a piece of the pie.

I just hope that people understand, not only that he isn't in it for the money, but for what was done to his image was wrong, very wrong.

Someone's copyright was taken advantage of and that is the biggest point in all of this. Whose, well that will be interesting as well when the dust settles.

Scott Miller

Anonymous said...

In my career in photography; my findings have been negative when a client does something outside my terms of agreement with my photos. I've found that the first sign of trouble usually comes when I notify the client that they've done something wrong with my images and they reply "we'll take care of you"

Be careful Mannie

Anonymous said...

1 - I would not trust the AP as far as I could throw it. They eat their own for a living.
2 - The other real question besides did he sign anything that might back the AP's claim: did he register it with the copyright office in a timely fashion?
3 - I hope he has a kick ass lawyer on this.

griffineyes said...

"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."

He didn't make anything iconic. Fairey's stenciled image was iconic.

Anonymous said...

Regardless of the fair use issue, I'm thinking this is a fairly cut and dry case of "work for hire" is it not? He got paid to make photos that day, he was there because he was paid to make photos that day. Without a contract saying he retains copyright, seems like the AP owns the image, no? Isn't this another case of having "no contract" being a bad thing? Maybe I'm missing something, but I bet that's the conclusion AP has drawn.

Lane said...

I'm with Mannie on this one. For those who say his image was nothing special without Fairey's treatment of it, you insult everyone. Fairey chose that image because it embodied something that he was trying to express: HOPE. He could have chosen another image, but he didn't, he chose Mannie's Obama.

While I really liked the HOPE poster and own a copy of it, as well as another Fairey Obama image, it does make me feel a little uncomfortable, as a photographer, knowing that Fairey didn't bother to get permission, pay for usage, or credit a hard working photographer. There are many artists who could draw Obama from memory based on all the images they have seen of him over time; clearly Fairey is not one of them. He needed the original photo to create from, and so I see it as a collaboration. Except for the fact that Mannie was not given the choice to participate.

I wish Mannie all the best in resolving this.

Chicago photographer said...

@ Anonymous one comment up. You have the concept of copyright entirely backwards. Copyright is bestowed to the creator of the work by default immediately upon creation of a work. It is only a contractual agreement that would transfer copyright from the creator to another entity (in this case AP), regardless of any money paid. Mannie indicated that he was not an employee and had not signed a contract. If those facts are accurate, then it is cut & dry that Mannie owns the copyright. Retention of copyright does not happen by contract. The big copyright question is: "is the copyright registered." That has a huge bearing on how eager a lawyer would be to take the case and what type of verdict remedies would be available.

Anonymous said...

Iconic image? The poster was iconic, the photograph was not.

"We'll take care of you." Yeah, like the mob "takes care" of you.

Fotografi said...

Really interestin interview and topic. Thanks.

Virginia Photographer #2 said...

Anonymous said...
Regardless of the fair use issue, I'm thinking this is a fairly cut and dry case of "work for hire" is it not? He got paid to make photos that day, he was there because he was paid to make photos that day. Without a contract saying he retains copyright, seems like the AP owns the image, no? Isn't this another case of having "no contract" being a bad thing? Maybe I'm missing something, but I bet that's the conclusion AP has drawn.


DUDE - get your facts straight about copyright. It is only work for hire when the contract is a work-for-hire contract with both parties signing the document.

If not document is signed, then the copyright stays with the creator, ie, Mannie.

Your conclusion is misleading and incorrect.

Anonymous said...

"Chicago photographer" is correct in the assessment that the previous poster had an incorrect understanding of copyright law. However, I do not believe that Garcia's registration (or lack thereof) of his image with the US Copyright Office will have a significant impact on how eager a good copyright attorney will be to take his case.

Registering his copyright would have allowed Garcia to pursue statutory damages which could have been significant monetarily ($100,000 per infringement). But absent the registration, he is still entitled to pursue recovery of any profits made as a result of the willful infringement, which we know to be very significant, as well as share any profits that will be subsequently realized. You can bet that if there were not huge dollars at stake, AP would not have injected itself into the dispute.

Virginia photographer said...

You go Chicago Pizza Boy! That's hitting it on the head.

This coming from a guy who retained his copyright to a fleeting under-valued moment that exploded a month later in a plane crash. I turned the bloody thing down - Dooh!!

It's a plain case of robbery and Fairey is a professional who knew as much.

Copyright it everything.

Whatever happens, and I hope Mannie gets his just deserts; Fairey needs to give credit and compensation where it's due. Without the original he'd have nothing...

Chicago photographer said...

Quoted from previous:
"I do not believe that Garcia's registration (or lack thereof) of his image with the US Copyright Office will have a significant impact on how eager a good copyright attorney will be to take his case."

I should clarify what I was saying about the copyright attorney, as you're probably right about that in this case because of its high-profile nature, but is applicable to all of us in "regular" infringement situations. One of the crucial provisions that a registered copyright provides is that attorney's fees are awarded IN ADDITION TO any damages awarded. That is important financial assurance to any legal team contemplating representing a plaintiff.

Quoted from previous:
"But absent the registration, he is still entitled to pursue recovery of any profits made as a result of the willful infringement, which we know to be very significant, as well as share any profits that will be subsequently realized."

This is true as well, but I'll just add that it's important to note they are limited to actual damages, which have to be proved. An expensive and cumbersome process, (A registered copyright presumes the damage, easing the plaintiff's burden of proof) and the attorneys fees will need to be paid out of those damages by the plaintiff.

And yes, we love our pizza out here!

Anonymous said...

Chicago photographer said...

"I should clarify what I was saying about the copyright attorney, as you're probably right about that in this case because of its high-profile nature, but is applicable to all of us in "regular" infringement situations. One of the crucial provisions that a registered copyright provides is that attorney's fees are awarded IN ADDITION TO any damages awarded. That is important financial assurance to any legal team contemplating representing a plaintiff."

"This is true as well, but I'll just add that it's important to note they are limited to actual damages, which have to be proved. An expensive and cumbersome process, (A registered copyright presumes the damage, easing the plaintiff's burden of proof) and the attorneys fees will need to be paid out of those damages by the plaintiff."

I agree with both of your points. I also forgot to mention that along with actual damages, which you correctly state are often hard to quantify, a winning copyright plaintiff can also be awarded punitive damages. Punitive damages are often much larger than the estimated profit from an infringement, and have largely to do with how egregious the infringement and whether the infringer was willful and had knowledge of copyright law.

I remember this occurred in the landmark Koons copyright case where that no-talent a--hole Jeff Koons flaunted his "right" to steal anybody's work and claim it as his own. The circumstances of the infringement in this instance are very similar, although Fairey may be stand up guy that just made a big (and costly) mistake. The test of an infringement is whether a "lay person" would say that one work was derivative from the other. Period. There is no "percentage of difference" test whereby a derivative work must be altered by a given amount in order to qualify as a new work. And especially in this case, where it is blatantly obvious that Fairey's work was copied from Garcia's, the "infringement" test is a no-brainer.

I think Chicago photographer will agree with me that the point here is to never, ever sell or transfer your copyright.

Anonymous said...

Poster art is not a photo, and no law exits that says you can't create an original work using a photo as a guideline, and it's been done millions of times.

Morons will have us believe you can't even use your eyes, without attributing the owner of what they see.

Mannie is going to learn how the AP made him a total fool.

Common Cents said...

I don't remember Andy Warhol getting successfully sued by Campbell's Soup.

I don't remember any photo realist painter getting successfully sued.

This isn't even photo realism, its posterization, with a completely different background.

PerfumeFactory said...

AAAARRRGGGGHHH! These comments remind me all too strongly why NYC ASMP (American Society of Magazine Photographers) meetings used to give me a migraine! Huge, poorly informed egos, myself included.

Most of the above is, when not nasty, ignoring applicable law and the implications thereto, long established. For example, whether the poster is culpable as "derivative". The law does exist that a copy cannot be made directly into another medium without permission, so the reference to "morons" speaks for itself. "Look and feel" legal cases are extremely expensive, as you are required in court to statistically prove through actual opinion sampling whether there is a perceptual match or not. This, however, is irrelevant as the artist or an agent of the artist has declared in public that he used the photo in question. That would make it a certain copyright violation if the copyright owner did not give permission.

For the basic purposes of copyright, the creator is defined as the person who presses the shutter. That does not preclude easy initial registration or transfer of the copyright to someone else under ready circumstances, which might be the case here.

As for the inappropriate remarks against AP, I really wonder how many of the commentators are full-time, professional photographers, not awesome Flickr dilettantes? It is very hard to make a living as a photographer, most especially as a journalist. AP has an excellent reputation for the way they treat photographers. Without such an agent the "zen photographer" here would probably not have been working in the circumstance of ready access to Obama. In a status without a written contract, the details become extremely important.

So the artist says the Obama people supplied the photo. Sounds like a lawyer may be on board already. If so, they are [also] culpable for a copyright rip-off…Presidential pardon? The photographer sounds like a really nice guy but, my friend, you are a knucklehead for not being represented by an attorney as there are millions of dollars at stake here. You become a philanthropist after you make your money not before. I cast no aspersion on AP with that advice. A rich photographer is an oxymoron! Although I suspect the non-contract hire gives AP the copyright (because they automatically register copyrights upon distribution) a good lawyer can always make a deal, especially when there is huge public attention; nobody wants to look like a bad guy.

As for my credentials, I was a moderately successful fashion photographer for 20 years in NYC, had covers on Pop Photo & American Photographer for my involvement in photography itself. I had images requiring legal protection almost every year and was successful in recovering damages. My fee for giving the above advice is to let you know about my first photo book, "Real Views", due this year. It is on "zen" visual awareness for the amateur snapshooter.

Douglas Hopkins
http://tiny.cc/6JZfi

enhager said...

Free Shepard Fairey

Or Not

Chicago photographer said...

"I think Chicago photographer will agree with me that the point here is to never, ever sell or transfer your copyright."

I would indeed agree.

usdr said...

Good review. I really liked the HOPE poster and own a copy of it, as well as another Fairey Obama image, it does make me feel a little uncomfortable, as a photographer, knowing that Fairey didn't bother to get permission, pay for usage, or credit a hard working photographer.

Anonymous said...

One thing that i learned in photography business is that you have to take care of yourself or else no body will take care of you.

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