Wednesday, November 4, 2015

The Associated Press v. Shepard Fairey


Saying that the photograph by Mannie Garcia, working with the AP, is "alledgedly" an infringement when it was used as the basis for Shepard Fairey's now famous posters of Barack Obama, is like saying (prior to the civil verdict) OJ Simpson alledgedly killed Nicole. Yes, we must say "alledgedly" only because a court of law has not issued a judgement, and, so be it. Yes, I will concede that we reported and wrote about the issue and referenced another photographer as the photographer, however, as Fairey has been clear that the basis for his piece was a photograph, unless it was a photograph he took, or one which he had a license to create a derivitive work from, he isn't alledgedly anything. He is infringing.

How?
(Continued after the Jump)

Fairey claims "Fair use", however, a fair use claim is an 'affirmative defense' that can overcome an infringement claim, not an assertion that the use didn't violate copyright. So, let's be clear - Fairey DID infringe. Whether the AP or Garcia is entitled to any revenue, or an injunction is the question on the table.

On the injunction question - certainly, the AP makes every effort to maintain a neutrality on a for/against stance on Obama. So, the use of an AP image to promote Obama diminishes that effort. In point-of-fact, it is highly unlikely that the AP would have allowed their image to be used in a commercial manner such as this, because it could give the appearance of an endorsement, so there is a clear case for an injunction.

"Ahh, come on, it's just for a poster, there's no appearance of an endorsement", some might say. Ok, let's step back from all the blind-faith support of our new President, and look at the other side - the side of McCain/Palin. When background music from the band Heart was used at campaign stops to entertain (and warm up?) the crowds, Heart objected (People - Heart to Sarah Palin: Quit Playing 'Barracuda', 9/5/08), and I agree that McCain/Palin shouldn't have done that. McCain in February of 08 caught heat for other songs, and so too did Bush during his campaigns. All were "just for the assembled crowds to hear", but there was an implied endorsement. So again, the AP should be allowed to obtain an injunction on this.

What about additional revenue?

You bet. Fairey based his image on this photo, and without it, he would be forced to close his eyes, and THINK of an amalgamation of all of the times he's seen Obama, and draw from that. Or, perhaps, a recollection from meeting Obama. This poster is a derivative work. Yes, Fairey's work has significant originality, and thus, is copyrightable in its' own right, however, it is, in fact, based upon a photograph that, in and of itself, is copyrightable. Again, Fairey admits it is based on a photograph. In fact, according to Mannie's website - MannieGarcia.com:
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 known now as the “HOPE” and “PROGRESS” posters.
Ok, so whose photograph is no longer in question.

So, why isn't Garcia filing claim? Well, perhaps he is not the copyright holder. Since he was not an employee of the AP, he likely signed the AP contract. If he did, then he would have transferred copyright to the AP. If he did not, then he's in a unique position, because there are supposed to be only two types of photographers - staff, or freelance. Which one is it? Is it possible there's a third category? A temporary hire who is neither an employee, or a freelancer? If so, how would rights be handled? Absent a contract, the rights would likely go to Garcia. To comment on the possibility of freelance photographers and copyright, In the latest version, which we wrote about here, is similar to the previous one that existed in 2006. However, here's the comparable language from Section 4, Term 4.1 as it pertains to rights/Copyright:
"Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a "work for hire" under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer."
So, if he did sign the AP contract, then the AP is the copyright holder, and thus the AP has the right to bring suit, seek monies, or preclude the use. If he did not, then Garcia owns the copyright, and Garcia has the right to make the claim.

Why bring this claim? Aren't we supposed to be united as one under our new President, with a message of openness and Perestroika? Because, if the AP owns the copyright, then they must be consistent and vigilant, lest this be example #1 in some other infringers' defense down the line. What if the tag line wasn't positive? Instead of "HOPE" or "PROGRESS", what if it was "VILLIAN" or "THIEF"? Heck, the red and blue-green color scheme could represent danger, or something. Then, how would you feel about the AP stopping this? Would your opinion about the use of the photo change if it was a message critical of Obama instead of positive?

The copyright holder, whether Garcia or the AP, certainly has a claim. The AP certainly has the where-with-all to back it up. The artists' gallery contacted Garcia likely thinking that he would just be so honored it was his photo that he'd give them a retroactive license, and everything would be ok. Instead, either the AP or Garcia is the owner, and they are defending their rights, as they should. Fairey made money on this art, why shouldn't the AP and/or Garcia?

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