Two Updates...

...On recent post topics.

For one, you've probably read that The Associated Press has decided to assert its rights in the Manny Garcia v. Shepard Fairey Obama 'Hope' poster matter. (A further article here), most likely based on the research Tom Gralish did to uncover the source photo and photographer. (Note that the Obama campaign never used the first poster officially because of concerns about the rights to the original photograph.)

I contacted Carolyn E. Wright, the author of the Photographer's Legal Guide and the writer of the Photo Attorney blog, and she's written a post about the case. Her conclusion? She'd take the case for infringement, if it were presented to her, although copyright is always situational and it would take a court ruling to truly settle the matter. Her entire post is interesting.

Another little point not to be overlooked by photographers: consider that Manny Garcia may have taken one of the defining photographs of his career in this instance—the rare shot that many photojournalists only get once in a career, similar in its iconic nature (though not, perhaps, in intrinsic newsworthiness) to Alberto Korda's portrait of Che Guevara, Sam Shere's shot of the Hindenburg crash, or Joe Rosenthal's shot of the raising of the flag on Iwo Jima—but he's not likely to see any of the proceeds of any legal action or settlement between the AP and Fairey. Since he was a stringer for the AP at the time, his shot belongs to them. Granted, he probably wouldn't have been where he was or taken the shot at all if he weren't working for the AP at the time, but still. (A "stringer" is a freelancer hired part-time, or used regularly but intermittently by a magazine or newspaper but not on its staff.)

Face in the crowd
Switching gears, I know I've beaten David Bergman's Gigapan photo of the Inauguration half to death here (I'm guessing this will be the last mention), but I can't resist this nifty update. Here's my friend Bob Burnett and his family at the Inauguration...

...And here, after hearing about the Gigapan photo here on TOP, is what Bob was able to find in the crowd with a diligent search within the image of the area where he and his family were standing.

Pretty cool, I thought. Now Bob doesn't have to prove to his grandchildren that he was there.

(On an unrelated note, Bob, a film director, recently won CINE's Special Jury Award, one of their top honors, for his Wolf video made for Defenders of Wildlife. Congrats to Bob and his production team for that.)

Mike

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Comments

[Speed]

"Garcia also questions whether the AP even owns the copyright to the photo. He says that he was not on the AP staff at the time the photo was taken, and never signed the AP’s freelancer agreement. He said he has had several conversations with AP managers in recent days about ownership of the image, adding, 'I never wanted to fight the AP.'"
http://www.pdnonline.com/pdn/content_display/photo-news/legal-news/e3ib47a6c218351ced30500a73d2399604c

[Clyde]

According to this blog interview by John Harrington, Manny never signed a contract with AP. So he still has a dog in this fight.
http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html

BTW my wife and I are in that Gigapan shot too. Great day that.

[John Camp]

I can see why Wright would take the case, but wouldn't be surprised if she lost. There are more checks "against fair use" than there are for, but not all the checks are equal.

In my mind, I think the two big marks *for* fair use are that the image has been transformed, and that the original image is not particularly creative -- that is, there were other, virtually identical images, that were also suspected of being the one the poster was based on, because this is essentially a mug shot. It is *nothing* like the Che situation, where the photo *was* the icon. In this case, the transformed *poster* is the iconic image, and virtually any mug shot could have been used to make it.

I'd also hate to see the greed-balls at AP get the money (and that's what this is all about, of course); if Fairey gave a chunk to the photographer, I'd think that was a pretty decent thing to do.

JC

[Stan B.]

I strongly believe in creative ownership, on the other hand- it may be the one defining shot of Manny Garcia's career simply because of Shepard Fairey's "artistic rendition."

[Lambert]

AP, stop being so greedy. The original photograph is totally different from the poster and never would have sold anywhere near what the poster did. Sure, let others do all the hard work (printing, marketing, distribution and all that), then swoop in and take a big cut. Shame on you.

In fact, the photo shown next to the poster is very different from the one here: http://theonlinephotographer.typepad.com/the_online_photographer/2009/01/the-actual-hope-poster-photographer.html . If this indeed was the original photo, then AP has severely retouched (moved the shoulder line, blurred the flag) and cropped the photo to match the poster! So who's copying whom? And I believe it's unethical to retouch a news photo like that?

Whatever settlement they manage to get, they owe a whole bunch to Tom Gralish. Or are they going to claim that they came to the same conclusion independently of Tom's research?

From one of the links:
"He [Mannie Garcia] was quick to add he is not mad at Fairey, and he's not looking at any lawsuits. "I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work. I wouldn't mind getting a signed litho or something from the artist to put up on my wall."

At least the photographer had the right attitude.

[A. Nikkel]

Interesting case. Copyright issues aside, I have to disagree with the idea that the photograph was a once-in-a-lifetime, iconic, or otherwise rare image - it's not. I've seen about 200 pics of Obama that are more interesting, expressive, and/or dramatic. It just so happens that an artist used this one as a template - ironically it's Fairey's work that made it the iconic image it's become.

[Steph Mineart]

Interesting that for both examples of people finding themselves in the gigapan photo that I've seen, the subject was wearing a bright red jacket and a different color hat (one orange, one green.)

So... dress to stand out in a crowd.

[chuck kimmerle]

Garcia may not have signed AP's absurd "we own everything" contract, but his admission on the photobusinessforum blog that he was a temporary "hire" may mean that he never owned the images. Even a temporary employee, unless signing a contract to the contrary, falls under "work for hire", thus his employer, AP, would have ownership. Let's hope the lawyers show restraint.

That said, the situation is far from black and white and AP, whose treatment of freelancers has come under constant scrutiny since the inception of their mandatory "we own everything" contract, would best be served by sharing any proceeds with the photographer.

[Jason]

FYI, the photographer's name is Mannie, not Manny (thought it was originally reported with this spelling). It's been corrected in the AP's later postings: http://www.google.com/hostednews/ap/article/ALeqM5hcqhpLfgHpcIipb1rVGvAoa5BusAD96560SG0

[Richard]

AP is certainly living down to the reputation of the media and their attorneys. I just don't know what we can do about such legalized extortion. I don't want to diminish Manny Garcia's contribution, but if the Hope poster isn't an allowable derivative work that could just as easily have been based on hundreds of other photographs, I don't know what could ever be considered derivative. A simple test: A good graphic artist could have produced the Hope work with ever seeing Manny Garcia's photograph since there are so many very similar still and video images of the president to be found everywhere.

[yunfat]

I still can't believe the people who think it's no big deal and the photographer "has the right attitude", especially on a blog for so-called photographers.

I believe I can profit greatly from other photographers who value their work so little the won't go after the most iconic image of my time in a litigious manner. Manny Garcia: I will be showing a gallery of your photographs for sale and you won't see a penny, thanks for having a great attitude, you don't mind right? Don't worry, I will send you a copy of a print if I make more than $10k.

I've been doing it all wrong by creating original works, clearly nobody cares so I think it's better for me to just steal other peoples images and use them for profit.

If a blog for photographers won't speak to the insane behavior of a photographer who has laid down any rights to an image that created a presidency, then photography is dead, because nobody cares.

[Sam G.]

I recently listened to a conversation about copyright infringement in the music industry. They covered several cases and talked to a lawyer who had worked on some of them. He talked about the different strategies used in court: note by note comparisons of two songs, the accessibility of the infringed work to the infringer, etc. But the thing that stuck in my mind, and which I think applies to the AP v Fairey case, is that in the end, many of the jurors ruled against infringement because "the songs just didn't sound the same". In other words, people are much more likely to rely on their gut instinct than on a checklist showing what is and isn't copyright infringement. Even when they're sitting in a courtroom having a lawyer put forth a perfectly rational argument.

And when I look at these two images, they just don't look the same, especially when you look at the uncropped image. I also think it's telling that when Garcia saw the Fairey poster, he didn't even recognize that his own photograph was behind it. Compare that to the way Joe Satriani must have felt the first time he heard Coldplay's "Viva la Vida" and there's a stark difference. (Of course these two cases are also different in that Fairey deliberately started from a piece of Garcia's work while Coldplay was, at best, only unconsciously inspired by Satriani's work.)

[Mike Johnston]

Richard,
I usually side with photographers, but not reflexively, and in this case I agree with you. I think a cogent legal point could be argued in court simply based on the progression of the reporting I did here on TOP--the first item I posted here reported that a researcher had located the source photograph...but it was a different photograph than Mannie Garcia's. I do believe that Mannie's picture was most likely the actual source, but the fact that it is so close to other photographs that conscientious researchers could be misled into believing the claims of an alternate source goes to your point pretty vividly.

Mike J.

[JC]

One of the most absurd and frivolous anachronisms in the US legislation is, in my opinion (and I am a producer), the status of "work made for hire", where the employer takes all revenues for work made by the employee no matter what the conditions of their contract may be. It's clearly unbalanced and one sided. And an exception: If I'm not wrong, it's the only country were such an exception to the copyright law is accepted. Why, I can't quite understand. All the compensations set in European laws to help writers, actors, musicians, etc. end in in the corporate coffers of the likes of AP, Paramount, NBC, Sony, you name it... And maybe, with all the news organizations in the red, this is not the right time to adress the matter.

[tde]

"Manny Garcia may have taken one of the defining photographs of his career in this instance—the rare shot that many photojournalists only get once in a career . . "

Given that that photograph received no acclaim and no attention until it's resemblance to the Fairey poster was asserted - this seems like something of an overstatment.

Indeed, neither the AP nor the photographer was apparently aware that this "iconic" photograph was related to the Fairey poster.

So you have to ask yourself - what made this image iconic - the photograph itself which is utterly unremarkable or the work of Fairey?

[Ctein]

Dear Richard,

First, as a class, derivative works are NOT allowed without the permission of the source copyright holder. That's the way the law is written, by intent, and it's backed by extensive case law. It may well turn out that hardly anything is an allowable derivative. Allowable derivatives are supposed to be highly exceptional or represent only an incidental use.

Second, it does not matter what someone *could* have done, only what they did do. Plagiarism cases (same general problem) are like murder cases. To prove plagiarism, you look to motive, means and opportunity. If you happen to create a work identical someone else's, you're not in violation of their copyright. It's when you use that other work to create yours that you are.

(Example: George Harrison lost a plagiarism case against him not merely because "My Sweet Lord" had the same signature tune as "She's So Fine" but because he acknowledged that he was very familiar with the latter and that he probably had unconsciously retained it. If he'd never heard "She's So Fine", he'd have been off the hook.)

It's not legalized extortion, it's an entirely valid question regarding intellectual property. Personally, I agree with Wright's analysis, but I also agree with her that it's not a cakewalk nor a foregone conclusion. Which is what makes it a GOOD case.

pax / Ctein

[Rob]

You all should read Wright's comments carefully. This is a court's judgment call, that is both sides have some good argument and a court could settle the matter . . . meaning: there would have to be some amount of litigation expense before we figure this out. At this point it becomes an economic decision for Fairey. Option 1: is it worth spending $X dollars on lawyers to have peace of mind that either (1) you didn't infringe AP's photo or (2) you did infringe and now you owe AP more money (a gamble); OR Option 2: is it worth spending $Y dollars in settlement to be free of AP and go on about your business. Most people choose option 2.

[Dr. Nick]

The artist did all the work in this case. Would he be in the clear if he just altered something about the original, underlying photograph?

[David Bostedo]

"One of the most absurd and frivolous anachronisms in the US legislation is, in my opinion (and I am a producer), the status of "work made for hire", where the employer takes all revenues for work made by the employee no matter what the conditions of their contract may be."

This is true in areas outside of art as well. In general, when someone is paying you to produce, they own whatever you produce. As a computer hardware engineer, if I were to come up with a circuit that made my company billions, I'd maybe get a small bonus. I don't see that as an injustice - it's a trade-off for the pay I receive, doing work I enjoy, and not having to go it alone and take many risks.