Garcia Claims He's The Obama "Hope" Photo Copyright Holder, Not AP

 

NEW YORK, NY (July 27, 2009) – The copyright lawsuit and countersuit between the Associated Press and artist Shepard Fairey is no longer a two-party affair.

Now freelance photojournalist Mannie Garcia has staked his own claim in the dispute by filing court papers to join the suit alleging that he's the copyright holder for the now-famous image of then-Senator Barack Obama, not AP, and that he has the exclusive right to license the image, not AP.

A judge in the Southern District of New York's U.S. District Court, where Fairey and AP sued and counter-sued each other, must believe Garcia's motion has enough merit to be heard, because Garcia's been allowed to join the suit.

The dispute about Fairey using a photograph from the Internet of Obama that was distributed by AP and shot by Garcia as the basis of his famous Obama "Hope" poster centers on Fairey's claim that using the image as his "source" to create "original work" is "fair use." AP contends it was not "fair use" and therefore Fairey infringed on AP's copyright. AP has claimed all along to be the copyright holder of Garcia's photograph because they say he was working for AP for a five-week period during which time Garcia made the photograph during a National Press Club press conference in Washington, DC.

Garcia's motion to join the lawsuit says that he was a freelancer when he was shooting for AP and he claims AP's work-for-hire agreement does not apply, and Garcia has made his own copyright registration for the photograph. AP claims Garcia was in their employ for that five-week period and AP has filed their own copyright registration for the image. The copyright office also has a registration from artist Fairey for his Obama "Hope" posters that were based on Garcia's image.

Garcia's lawyer, George Carpinello, told AP last week, "We have no problem with Mr. Fairey creating a poster but he should have used his own image, or at least acquired the rights to that image ... the photograph exhibits the artistic talent of Mr. Garcia."

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 2009 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.

AP, Fairey, and Garcia's lawyers are now all in the "discovery" phase of the lawsuit and unless there are unexpected developments the next court hearing in the case isn't until November.

 

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