Mannie Garcia Seeks Intervention in AP v. Shepard Fairey

- - copyright

“Manuel Garcia — has now moved to intervene in the action, claiming that he — and not the Associated Press — is the owner of the copyright in the photograph.” (here)

Link to the filing (here).

Really a fascinating and important case to watch.


fairey_ap_090709GarciaInterventionMemoLaw

Thanks for the tip Ellis.

There Are 38 Comments On This Article.

  1. Its makes sense that Garcia is looking to intervene – but that doesn’t necessarily mean that he wants part of a potential (yet highly unlikely) settlement.

    For example, if the AP somehow won, that might entitle them to the copyright of all of Garcia’s works (and not just Garcia, all of the the temp photographers who shoot for the AP with no contract could be exposed) produced for the AP.

    If Garcia successfully intervenes on the basis that the copyright is his, all of a sudden the AP is on shaky ground. Maybe the only way he’ll get that signed print is by torpedoing the case.

    More likely is that he just doesn’t want to be associated with the case anymore, especially if the AP is misrepresenting his interests. Since there was no contract, Garcia will not see any part of a settlement anyway. I imagine he just wants this whole thing to go away.

  2. Interesting to watch indeed. I hope he wins. But I also fear the ultimate result (perhaps regardless of the outcome of this lawsuit) will be companies like AP will demand that everyone sign an ironclad, probably overreaching, agreement as a prerequisite for even temporary work.

  3. AP, what a bummer. It’s like that feeling you get when you realize your favorite super-hero is actually a SAG actor .
    Really AP? It’s your photo? You own it? Isn’t that a slap in the face to all the photo-journalists who took bullets while providing you with great coverage of wars your pencil pushers wouldn’t dare to see for themselves?
    The summary of AP’s intent can be read at the bottom of their website- Buy Buy Buy Buy.
    Hey AP photographers! I have an idea for you. Form a union. A real union.

  4. So the photo – one of 275 he took at the eventand one which Mr. Garcia did not recognize as the source for the Fairey poster – was “made distinctive” by Mr. Garcia’s choice of lens, lighting, timing so that it was a “careful and unique” composition?

    Okey, dokey.

    • @tde,
      Fairey said he looked at thousands of pictures of Obama until he found the perfect one for the poster. What does that tell you about the uniqueness?

      • @A Photo Editor,

        At the risk of sounding snarky, it tells me that Fairey spent hours and hours examining images searching for one that was consistent with concept he had in mind for his poster. That sounds, to me, like the work of an artist.

        Compare this with the photographer who shot 275 images in the space of (I assume) an hour or two while covering the panel discusion on Darfur featuring Obama and George Clooney. Blazing through that many captures in that period of time strikes me as somewhat less of an artistic process then a mechanical one. I don’t mean this to sound as dismissive of Mr. Garcia as it probably does, not doubt his many years of experience allowed him to almost instinctively set up shots.

        That said, artistic merit and abilities doesn’t have anything to do with the law of copyright – so I guess we’ll see how it plays out.

        • @tde,

          Assuming he works like the vast majority of PJs at these things he shot in bursts with the motordrive on. Lets say eight frames per burst to chose the best frame from: 275 / 8 = 34. So that’s the equivalent of 34 shots by a single frame sniper tog – and sounds less ridiculous.

          • @mit,
            I, too, would assume that he shot in bursts as well. And, as anyone who has burned through 6 or 8 frames per second knows, there is simply no way in the world that you are choosing the exact image as you hold down the shutter release. You set up the shot and then fire away and then go back and (hopefully) say “Nice one there”.

            • @tde,

              So Steven Spielberg has no claim to ownership to a still from one of his movies because it’s shot at 24 frames a second?

              Is Jackson Pollock’s work less worthy than Michael Angelo’s because one threw the paint and one used a fine brush?

              The process of creating the work and how good any one thinks it is completely irrelevant.

              • @mit,

                Again, I was just poking fun at the claim that it was a “careful and unique” composition.

                And, to be clear, if you stumble out your front door and snap a picture of the sidewalk, that image is as copyrightable as any is.

        • @tde, I started out as an artist doing oil paintings, and then illustration work, prior to getting into advertising photography. Despite more effort and arguably more skill needed to complete a painting, I would never claim that toil validates artwork. Even if you used that measure, Shepard Fairey’s skill comes from software, and not from any hand skills (note: I have met him, though he may not remember me (San Diego)). At best I would call Shepard Fairey a graphic designer, which is not a bad thing at all, but I would never consider him a fine artist.

          Owning software, or camera gear, does not make you creative. Even ideas are not all it takes, otherwise Jeff Koons would not be so controversial. If you want to categorize Shepard Fairey with Koons, or maybe with Richard Prince, then that might get some agreement. Where all them really show any talent is in self promotion, but then again Thomas Kinkaid is on that level too.

          • @Gordon Moat,

            There’s no correlation, of course, between toil and artistic merit. Some “artists” labor mightily to produce crappy art. Instead, my point was to poke a bit of fun at the absurd claims in Mr. Garcia’s legal filings that the source image was “careful and unique” composition.

            While artistic merit has little to do with the law of copyright, advocates still feel the need to puff up the “artistic value” of Mr. Garcia’s image.

            • @tde, Sure, photojournalists might not be as “careful” as other photographers on the decision of when to press that shutter button, or how often, though I think more than a few photojournalists would disagree with that. As far as “uniqueness”, I think Shepard Fairey already determined that quality by selecting that image. Shepard Fairey could defuse this by compensating Mannie Garcia, though I think his incentive to draw this out is precisely due to the viral press of the “controversy”. As to whether AP should be compensated, if they cannot produce paperwork signed by Mannie Garcia, then they have no legal rights to compensation.

              What your “poking fun” implies is that any hack with a camera could’ve taken the same photo as Garcia. I don’t know if you are trying to insult photojournalists, or Mannie Garcia, but that’s the way it comes across. If you are not trying to do that, then how do you think Mr. Garcia should’ve phrased his court filing?

              There is also historical precedence in this from the case of James Abbott McNeill Whistler vs. John Ruskin:

              http://en.wikipedia.org/wiki/James_Abbott_McNeill_Whistler

              If you read about the Ruskin case, the claims of Ruskin suggesting a lack of effort as the basis for the libel charge, then you can see how “claims” of artist merit can face challenges. Interestingly Whistler was successful in that case, though the effort led to a much tougher later life. Perhaps Mr. Garcia will win his challenge, only to find a similar fate awaiting.

              • @Gordon Moat,

                It is interesting how all of these discussions of the artistic process and whatnot always seem to return back to putting a few dollars in someone’s pocket.

                From what I understand of copyright law and assuming for the sake of argument that Garcia had a copyrights to that image, he could have refused to license it to Fairey.

                Fairly neatly eliminated that problem by just taking the image. And, while I realize that my view doesn’t necessarily square with the current law of copyright and is probably unpopular with people who try to make a living controlling the income stream from the photos they take, I think that is just fine and dandy.

                • @tde, I think I see where you are coming from, in that you think it is okay to take whatever image or created work you find, and adapt it to your own purposes. If the laws backed you up on that, it would be the same as governments telling me that I cannot make a living from any creative profession. After all, if it is okay to just take, then how could anyone justify charging. Last I checked, I was not living in a totalitarian state where the government dictates how I make a living, so I will continue to attempt to make a living doing a creative profession. Meanwhile, I wish you luck with your creative appropriations, but suggest that you develop some real creative skills, rather than just “take” from others.

                    • Debra Weiss

                      @tde, You’re not serious, are you? I thought Gordon was incredibly restrained in his response to you. Appropriation is nothing more than theft and you think this is fine and dandy. What is it exactly that you do for a living?

                    • @Debra Weiss,

                      Yes, quite. See his last sentence. Throwing in snide personal insults does little to advance this discussion.

                      The personal issues – including, say, what one does for a living – have nothing to do with the merits.

  5. Thanks for posting this. It could be far reaching with the outcome. Let’s all hope that Garcia does not just win a battle and loose the war. It’s easy to image that a lot could be at stake.

  6. This seems like one of those open and shut things — either the AP hired him as a work-for-hire (with a contract to prove it) or they didn’t. If they didn’t, then they don’t own the copyright to the photograph. If they did, then they do.

    • @Ryan McGinnis, I’m with you man, even in the legal doc the AP is saying in the last line that it, not Manny, owns the copyright … I’m so confused. I’d love an ownership statement from Manny but I’m suspecting that he’s sold out with regard to this issue somewhere?

  7. now, you will kill me!? in all this,where is Obama?really,i am asking!he is ok,no copyrights for him.his image is on poster.
    i am asking,because when i want to make a book of portraits which i did during shooting for magazine,asking the model(celebrity)to do something else for me,now i need 70 signs of agreement,because their image i use for comercial purposes like they used to say.
    i will watch this case.it is truly essential for many reasons.

  8. Actually, there’s a lot of misunderstanding about Work for Hire among photographers – in many cases, it’s actually not enforceable, so I have a feeling the AP will have a weak case in this.

    The AP, I’m sure, has some nice, strong legal agreements, but unless they can produce one for Manny, they’re s*** outta luck.

    I have a feeling that if they DID have an agreement, they would have produced it by now.

    This is going to be an interesting one…

  9. According to the federal copyright site, unless there is a written agreement otherwise the person or company who hires you owns the copyright. From the federal copyright office:

    “If a work is a work made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless there has been a written agreement to the contrary signed by both parties.”

    When I sell work now, I grant a license and do not sell ownership of the work. Isn’t that right?

    If Manny sold the images to AP, it would depend on the license he sold them with. If he shot them independently and then sold them, the authorship is his. If he sold them without a license agreement I would be pretty surprised.

  10. As the author of the work, Garcia owns the copyright upon creation., unless he signed a contract granting work for hire rights to AP. In previous interviews Garcia claimed to have never signed a contract with AP, that he worked for them as free-lancer. I have yet to see AP produce a contract stating otherwise. So as Mr McGinnis states above this should be a simple open and shut case. Somehow I believe once attorneys are employed it will no longer be. As free-lancers, we should all be watching this case carefully.

  11. of course he should own the image unless he signed some kind of a work for hire contract. if he did, then it could be tough. work for hire should only be done for a large “buyout” and i’m sure the AP does not do that.

  12. This should be interesting…

    From PDN’s article:

    —-
    “He [Garcia] was never an AP employee, but was the creative author and rightful owner of the photograph,” Garcia’s motion says.

    The AP disagrees. “The Associated Press is evaluating Mannie Garcia’s position, but remains confident in AP’s ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo in 2006,” an AP spokesperson said by e-mail.
    —-

    However, unless AP can show that Manny was on payroll (with taxes withheld, benefits offered, W2 submitted, etc.) then they have a really uphill battle here.

    Sounds like there’s no contract, so by default, Manny would be the copyright holder.

  13. … cock-fighting was banned in my father’s era … Seems to me lthis whole thing is just turning into bet on a different kind of blood sport …

    Mannie’s claim to ‘fame’ is a RESULT of Fairey’s EYE, not Mannie’s. If Fairey had NOT selected this image, Mannie’s snapshot of Obama would have slid into obscurity … That’s not to say it isn’t ‘his’ image, only that the image has achieved a GREATER ‘worth’ then it intrinsically HAD. It is precisely because of Fairey’s ‘tweeking’, and now this subsequent controversy, that Mannie’s shot is now deemed ‘noteworthy’.

    And ALL of ‘em are sucking up the enhanced publicity: AP, Mannie & Fairey. It’s a ‘story’ and all are milking it, or trying to.

    Overall, I find I’m siding with Fairey on this one. He SAW the POTENTIAL to make this ONE image MORE then it apparently WAS.

    And no, I am not placing a bet …

    • @maggie, If one agrees with your position and many do, wouldn’t it stand to reason that in all fairness Fairey should recognize Garcia as the original author of the source material, without which Fairey could not have created his poster image and shouldn’t Fairey at the very least offer some kind of compensation, ie negotiate a license to the original and pay some kind of reasonable royalty? I’ve never gotten the sense that Garcia was trying to stop Fairey from using the image, only that he wanted a fair shake in the deal.

  14. @Robbie McLaren … I think what is increasingly at dispute here is what is known as ‘transformative use’ within the framework of ‘fair use’ . This is not as ‘cut & dry’ an interpretation as some may think, ergo, the lawsuit.

    [See: http://www.ipinfoblog.com/archives/intellectual-property-some-courts-are-getting-fair-use-analyses-about-transformative-works-wrong.html

    To my mind, Mannie is ONLY seeking acknowledgement & compensation NOW because the higher profile Fairey, by selecting his photo OVER A YEAR AGO, has GENERATED the POTENTIAL fame & market for Mannie’s work that he never would have been able to create for himself.

    That’s not to condone Fairey’s actions. I’d certainly be right livid if he used my work without permission or compensation. I would have jumped down his throat the MINUTE I discovered it. It is rather telling that Mannie is only getting in a lather NOW, a good loooooong time after the basic image was discovered to be ‘his’. Likewise, he’s only rattling his sabre NOW cuz AP is rattling theirs.

    For me, I do think that most of what’s going on now is that AP & Mannie are trying to milk both the story and potential revenue from Fairey’s work/publicity & sales. And that ain’t right in my books. Why? Cuz I WOULD say Fairy’e work is ‘transformative’ altogether. Not only did he change the basic colour palette of Mannie’s work and transform it into a ‘graphic image’, he also added ‘copy’, ie. HOPE. That’s not where Mannie ‘started’, or ‘stated’.

    In a parallel post, Campbell Soup did not pursue any legal action when Warhol ‘transformed’ their soup tin into what has now become an ‘American icon’. I’m quite certain that NOW they relish the ‘status’ that Warhol gave to their product … To wit, Mannie’s image of Obama is likely to spin into obscurity SAVE FOR Fairey’s ‘transformative’ intrepretation …

  15. I think the important issues to be addressed are if legally, Mr.Fairey had the right to do what he did. I hope not.

    And does the AP own Mr. Garcia’s photo as it claims it does . Again, I hope not.

    Based on Mr. Garcia’s statement that he was not under any written contract with AP. I don’t see where the AP gets off claiming anything regarding this photo. (Of course, it’s the AP! If the AP was a human being they’d need pants bigger in the crotch to accommodate their HUGE BALLS ! )

    Sam D’Amico