FAIRey USE
Early this year, the Associated Press decided to sue artist Shepard Fairey for using photographer Mannie Garcia’s image of Barack Obama as a model for his famous HOPE campaign poster. The legal back and forth has continued for several months now, the most recent hiccup being that Garcia now claims that it was his copyright that was violated and not the AP’s since he was only freelancing for the Associated Press when he took the photograph.
Mannie Garcia’s photo of Obama and Shepard Fairey’s famous poster
But while the legal community is trying to pretend that this is about fair use and the rights of creatives everywhere, any sane person who looks at Garcia’s photo next to Fairey’s image can only conclude that these two images have little more in common than the model and his pose. My recommendation to Garcia: next time take a photo that is so intrinsically yours that anyone who sees anything that might possibly have been inspired by it will know immediately who the source is.
This is just one more example of the law getting caught up in nuances that don’t apply to the real world—of the law failing to be about wrong and right. I can only wonder why some lawyer somewhere hasn’t thought to ask what the subject’s rights to these images are. After all, it’s Obama’s work as a politician that makes Fairey’s poster and Garcia’s photo valuable. No one would think twice about a picture of an anonymous Barack Obama but everyone wants a piece of the President.
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CATEGORIES: - Philosophy - On photography - On free culture - Featuring artists - Reviews -
(4) Comments / Commentaires: FAIRey USE
Out of respect for Garcia and the precarious position he was placed in by the AP, I didn’t blog about this story to begin with. But, when the photographer himself decided to become involved, I couldn’t help myself.
Garcia did not capture such an unusual moment or pose so there’s nothing about his photo that is protected by our copyright law, which secures an artist’s expression but not his subject matter. And the proof is in the pudding: if his photo were more unusual, it would have been immediately recognizable when looking at Fairey’s images, and it would have been famous in its own right—long before this legal back and forth made it so.
And thank you! Your etchings make me miss printmaking!
On the question of compensating the subject—when you hire a professional model from an agency, a continuing can be a part of the contract, which has always made sense to me. (I used to give my non-agency models a royalty, but those works never sold enough to really be worth it to either of us, sadly.)
I’d never heard of that before (royalties to subjects): that’s interesting!
I guess my point is that the subject is often a part of the intrinsic value of the photograph—more so than some photographers would like to acknowledge. I’m all for photographers getting the credit they deserve, but it some cases, including Garcia’s, I think photographers refuse to see where the real value in the image is coming from.
tim...
I agree. I know Mannie in passing and being a photographer I should probably back him but the sue crazy atmosphere makes me ill. I also make art with found images and believe there’s a point that it becomes yours. Perhaps in this case Mannie could get a small percentage that would actually add up to a lot?? About the prez and his rights… he gave them away when he chose a life in the public eye. That law has no grays which I think can be modified to keep the sleazy paparazzi under control.
Way dig your portraits.
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