By Donald R. Winslow
© 2009 News Photographer magazine
(UPDATED 3:05 P.M. EST FEBRUARY 5 2009)
NEW YORK, NY (February 5, 2009) – The Associated Press last night said that it owns the copyright to a Mannie Garcia photograph that was used by artist Shepard Fairey as the source of his famous poster of Presidential candidate Barack Obama, and the AP wants credit and compensation.
But the photographer who took the picture doesn't agree with AP, and today Garcia told News Photographer magazine that he believes that he's the owner of the picture's copyright.
"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," AP's director of media relations Paul Colford said in a statement last night. "AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."
This morning after AP's statement made the rounds, Garcia told News Photographer, "I've had a couple of conversations with AP about this and I've reminded them that I didn't sign a contract, and that I was not a staffer. I was brought in to pick up the slack while an AP staffer was out for a few weeks on leave." Garcia is a Washington-based freelancer who now works on contract shooting for Bloomberg News.
And now this afternoon AP's Colford has responded to Garcia's claim with a rather definitive restatement of ownership:
“Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.”
"I'm certain that AP and AP's lawyers feel that they own the copyright, otherwise they wouldn't have put out this statement last night, but that's not my position. I have a different attitude about this whole thing. I've expressed my opinion to Santiago Lyon [AP's director of photography], and he's expressed AP's position clearly. Our conversations have been very calm, very professional, but we've not come to the same conclusion."
That said, Garcia also said that he doesn't want a legal battle with AP. "I don't want to fight with AP, I'm not going to fight with them about it," Garcia said this morning. "But I'm not sure what happens next," the photographer said.
Fairey has publicly acknowledged that the image he used he found during a Google search of the Internet, and that it was Garcia's AP photo of Obama from a National Press Club event in April 2006 that he used as the basis for his poster.
Fairey's attorney doesn't think it's a problem. "We believe fair use protects Shepard's right to do what he did here," Anthony Falzone told AP. Falzone is the executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School.
Fairey created the poster in 2008 and released it on his Web site, AP says. It was widely used during the Presidential campaign on Web sites, in blogs, and on street posters. It is part of a Fairey exhibit coming up at the Institute of Contemporary Art in Boston, and a version of it as been installed in the National Portrait Gallery in Washington, DC.
AP's Colford said the continued use of the poster after the election is "part of the discussion" AP is having with Fairey's lawyer.
AP says that Fairey also used the AP photograph to create an image designed specifically for the Obama inaugural committee, which sold the poster for anywhere from $100 for just the poster to $500 for the poster signed by Fairey.
In mid-January it was originally thought that the Fairey poster was based on a Reuters photograph by Washington photographer Jim Young. Philadelphia Inquirer staff photographer Tom Gralish and others had been searching for the image that was the source for the Fairey poster, and writing about it in his Web blog. Philly area computer programmer Mike Cramer had also been searching for the photo, as well as New York gallery operator James Danziger, who had also been blogging about it. Cramer found an image by Reuters photographer Young that, when flipped and stretched a bit, matched the Fairey poster, and many thought the photo mystery had been solved.
But then on inauguration day, many Web slueths – including Cramer, Danziger, and Gralish – found Garcia's AP photo. Gralish searched the Web for any copy of Garcia's photo of Obama that might still have the IPTC metadata intact and, finding one, informed Garcia that it was his photo, and not Young's photo, that Fairey had used for the poster.
Gralish broke the news to Garcia as the photographer was busy covering Obama's first day on the job at the White House.
As an artist, Fairey is known for using photographic images and "repurposing" them in his work, along the lines of Andy Warhol's famous use of Campbell's soup cans and Gene Korman's publicity shot of Marilyn Monroe as the basis of his pop culture screenprints.
Fairey's "Hope" poster image was also used on the January cover of Esquire magazine, re-titled "What Now?," and the artist also did Time magazine's "Person Of The Year" cover of Obama, from a different photograph but in the same style as his "Hope" poster.
In the art world the discussion of Fairey and "fair use" rages on, in blogs and discussion boards and in articles such as this one, "Obey Plagiarist Shepard Fairey" by Mark Vallen.
