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

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.

No need to be prickish, Gordon.

[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 …

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.

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.

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.

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.

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.

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.

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 …

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.

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.

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.

“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.

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…