Monday, February 9, 2009

Keep 'HOPE' Alive - Fairey Sues AP, Garcia a Writer?

Bloomberg News is reporting that Shepard Fairey is suing the Associated Press. Fairey has gone to court - Fairey v. The Associated Press, 09-cv-01123 - which was filed in United States District Court for the Southern District of New York.

In this filing, according to Bloomberg - "Fairey seeks a court order that the image, created in January 2008, doesn’t violate AP’s copyright. According to the complaint, Fairey’s work is protected by the Fair Use statute, which allows limited use of copyrighted material to make original works of art."

On the other side of the aisle, there seems to also be a flurry of activity with the AP working behind the scenes to file their own lawsuit against Fairey in New York as well.

Meanwhile, back in DC, Mannie Garcia shared with us the first two sentences of the contract that he did sign with the AP, on March 1, 2006:

"The Associated Press appreciates the services provided by independent freelance writers. Clarity about the professional relationship between the AP and each freelancer is essential."
Writer? Seriously? I mean, I know Mannie can write a clear and concise caption, but a writer produces text, a photographer, well, not so much. So much for clarity.

The plot thickens.

(Comments, if any, after the Jump)

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Anonymous said...

I wonder if he got any action while he was locked up?

I hope he copyrights it if he did.

Will Seberger said...

I think Fairey's going to walk out of this one with nothing more than some attorney's fees to pay.

It's slimy (and hack-ish), but the degree to which he modified the photo changed it so much that 1) it was out there for months before anyone realized it was a digital modification of Garcia's photo and 2) it was modified significantly enough that people first assumed it was a different picture than Garcia's altogether.

This doesn't mean that not getting caught right away makes things ok, but rather that the changes are so significant that this will pass as 'fair use.'

Things so far are approaching the point at which it would resemble the Morrison estate (allegorically) suing Geffen Records because Nirvana used a G-A-D progression in one of their songs. Not an outright sample, but the same chord progression.

Like so many others here, I rely on the concept of intellectual property ownership to put food on the table. But this is all going too far. Everyone's trying to cash in.

In my opinion, what should be taken away from this is:

1) Fairey is a hack. Even if he is within the law here, just because you can do something doesn't mean you should. If the allegations of graffiti in Boston hold up, it's one more data point in my theory that he's the type of person who doesn't care about the rights of others or any concept of personal responsibility.

2) Garcia, despite being an experienced and talented photographer, should have been more aware of his agreement with the AP. Always work with a contract, and be aware of exactly what the terms are. Be as specific as can be.

3) The AP really needs to manage their photogs and contracts better. Really, if the AP does own the image, Garcia could just as easily infringe on their copyright (albeit unknowingly) as could Fairey (even though I think the courts will hold that he didn't).

All around, this is a great example of what not to do.

Craig said...

The fact that the AP didn't recognize its own photo until a year after the image was widely distributed supports Fairey's claim that the image was altered to such a degree, that it achieved a separate identity significantly removed from the original photograph.

Andy Warhol used similar techniques to famously alter photographs of Marilyn Monroe and Campbell's Soup labels, ultimately adding tremendous artistic and financial value in the final iterations.

IMO, Fairey will prevail if this case goes to trial.

Anonymous said...

In my naivety shouldn't the law be the law and not allow for generalizations such as the original owes more to its cousin the alteration rather than visa-versa.
I think as Will mentioned Fairey have suffer nothing more than growing fame and some remarkable attorney fees, those will be cringeworthy.
As Fairey and the AP duke it out I wonder if this affects any claim to ownership by Mannie unless he enters the fray to stake a valid interest. Shouldn't he act like he believes he owns it?

Anonymous said...

Who's going to sue me?

a. Fairey
b. Garcia
c. AP
d. all of the above
e. none of the above
f. depends on how much $$ has been generated by photos

Anonymous said...

I've posted a link to Fairey's complaint here:

Curious that Garcia has only released the first 2 sentences of his contract with the AP. I suspect the rest would clarify who owns the copyright in the photo on which Fairey's poster was based.

MarcWPhoto said...

I kinda lost interest after reading "the Fair Use statute," really. That tells me the person writing the article has no idea what they are talking about and couldn't be bothered to do even the most elementary research.

For those of you who aren't copyright geeks, there is no Fair Use statute. There is a section of the Copyright Act which sets forth Fair Use as an affirmative defense to copyright infringement. See:

It should be noted that Fair Use is not a "right," it is an affirmative defense. As I point out to my clients, raising a defense means you've probably already in trouble. If you are claiming Fair Use, you are admitting infringement. It is faintly analogous to the affirmative defense of self-defense when charged with some variety of homicide. You cannot claim that you did not kill someone, AND that you killed them in self-defense.


Unknown said...

And for us simpletons here's a video that explains copyright quite simply:

Anonymous said...

Here around the University of Chicago you still see the shirts, buttons and bumper stickers that were SOLD! Yes I said SOLD- I was interested in a shirt a couple of months before the election but the vendor wanted $30, $10 bumper stick and $5 for the button.

PBW said...

Not only is he a hack, he's a hypocrite:

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