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“Hope” for the Best: Manny Garcia, Shepard Fairey and the Associated Press February 5, 2009

Posted by lborodkin in : Uncategorized , trackback

Update 3/12/09: The Associated Press filed their answer and counterclaims against Shepard Fairey.

You can read the answer and counterclaims here.. It’s a great read. The answer and counterclaims include lots of embedded color pictures (something I’ve never seen in a pleading before).

The AP’s answer and counterclaims emphasize the artistic merit in news photography, the AP’s non-profit status, and the importance of having a financially independent press.

Is it persuasive? You be the judge.

Update 2/9/09: Shepard Fairey has sued the Associated Press in New York for a declaratory judgment that his poster is fair use.  No word on whether Manny Garcia will be joined.

Here’s my post on LAist about the Associated Press’s claims that Shepard Fairey infringed its copyright in AP photgrapher Manny Garcia’s 2006 photograph of President Barack Obama.  No lawsuit has been filed, but the controversy illustrates the huge divergence in what people believe to be “fair use” under copyright, and what they think it should be.  It’s a dynamite case on so many levels, given the timing, the economic climate, the copyright reform movement and the promise of accountability in the new administration.

There’s a terrific collection of links, discussion and summary of copyright standards and precedents courtesy of Carolyn E. Wright, aka PhotoAttorney.

So who’s right?  It’s a great case for setting the law straight on the non-economic rights of copyright holders but a lousy case for damages.  Fairey openly admits he copied the Garcia photo but it is also widely reported that Fairey hasn’t directly profited economically from the poster.  The AP hasn’t tried to enjoin the “Hope” image and it also hasn’t revealed whether the compensation it reportedly seeks is monetary or non-monetary.

I wonder if proponents or strong copyright will figure out that they stand to gain tremendously if the AP takes this once-in-a-lifetime opportunity to set precedent for the non-economic value of copyright.  Shepard Fairy admits he copied the image.  When is that ever going to happen again (or with such a high-profile work)?  The AP doesn’t need Shepard Fairey’s money.  They do, however, need to protect their copyrights.  If the AP’s lawyers take the long view, they will restrict their quest for compensation to joint copyright in the image, forcing a ruling on attribution and derivative works only.

At the very least, I “hope” everyone knows who Manny Garcia is by now.  His photo really is terrific.

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Keep the updates coming. This court case outcome, if it goes to court and is not settled out of court, will have major implications from now until forever more. It certainly is a slippery slope. For example, if the AP wins and it is determined that the means by which the image was copied was because of a left click, “copy this image” option in say, the I.E. browser, then can a case be made that I.E. should not include this functionality within their browser? Very interesting indeed. This is the kind of case court students are talking about in their classes right now.

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I think it's a difficult case to try and run, as with anything that has to do with “fair rights”. There's such a gray line that is filled with loop holes.