Fairey v. AP v. Garcia v. Fairey: "Hope" Poster Photographer Asks, "What About Me?"

Mannie Garcia, the photographer who took the famous photograph that Shepard Fairey used to make his "Hope" poster, has officially jumped in the fray.

When the AP first threatened Fairey with legal action in February, it was not at all clear that the news organization owned the copyright to Garcia's photograph, as I pointed out at the time. Garcia told me that he had worked as a freelancer, not an AP employee, and that none of the documents he signed granted the AP the copyright to any of his photographs -- which, if true, would end the AP's case.

Now Garcia is telling his story to the judge, with the powerhouse firm of Boies, Schiller at his side. (So much for just wanting a signed lithograph from Fairey.) In his papers, Garcia also signals his intention -- if he is allowed to intervene in the case -- to dispute Fairey's "fair use" defense.

I still think the "Hope" poster constitutes fair use, as I explain here. But if anyone can convince a court otherwise, it's Garcia's formidable legal team.

Jonathan Melber is an attorney and co-author, with Heather Darcy Bhandari, of ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (Free Press), a professional-development guide for visual artists.

Follow Jonathan Melber on Twitter: www.twitter.com/ARTWORKbook

Comments

[PinkoPanther]

Shep will just have to sell more of his T-shirts at Macy's to cover the fines, awards and legal fees... Being the not-so-self-made Empire that he is, that shouldn't pose too much of a problem.

[gwarseneau]

Lithographs are original works of visual art created by an artist.

Mr. Fairey has reproduced his paintings resulting in reproductions and has misrepresented those reproductions as lithographs.

In your article, you, with or without intent, perpetuate that misconception by promoting that Mr. Fairey has lithographs to sell.

As for Mr. Fairey's so-called -fair use- of Mr. Garcia's photograph without the copyright holders' permission, Mr. Fairey made hundreds of thousands of dollars selling this -Obama- poster.

By any other name, it sounds like profit at someone elses' expense.

Respectfully,

Gary Arseneau
artist, creator of original lithographs & scholar
Fernandina Beach, Florida

[potrerohillman]

putting the photo and the poster side by side show that they are both the result of skilled artists. however, gracia's photo and poster are sufficiently distinct. actually, one could argue that fairey's reinterpretation required much more skill than being in the right place at the right and pushing a camera button.

[itolduso]

Mr. Garcia's photo captured something very distinctive & memorable in Obama's pose, expression, & lighting. Mr. Fairey valued that. Changing the colors did not 'transform' that 'something'. He should have asked permission to use it.