Now, a Copyright Triangle: Photographer Seeks to Intervene in Fairey-AP Lawsuit

Mannie Garcia, the AP photographer who created the image of Barack Obama that eventually resulted in Shepard Fairey’s “Hope” poster, is now asserting his ownership of the copyright in court. Garcia filed a Memorandum of Law supporting a Motion to Intervene in the action between AP and Fairey last week.

Typically, when a work is created in a regular employment situation, the copyright of the work produced at the behest of the employer is owned by that employer.  There are some exceptions to this, depending upon the conditions of the employment.  There may be a contract involved where the photographer, whether as a regular employee or as an independent contractor, gives up all rights to the images created. Garcia has said that he did not make such an assignment of his rights to AP.

In last week’s court filing, Garcia appears to assert that the image was not work made for hire because he was neither a regular employee nor an independent contractor (the later presumably based upon the absence of a contract).

The Garcia memorandum does not directly state a position opposed to that of Fairey’s fair-use argument.  It does, however, reference the profits gained by Fairey in exploiting the image.  This represents a bit of contrast by Garcia, who in earlier days appeared to appreciate Fairey’s use of the image he created, reportedly stating that he was happy about the use.  However, even in his statements of February 2009, Garcia asserted that he was the owner of the copyright.

Copies of the image in question have been sold in a limited edition by a New York art gallery, which may present another conflict over the copyrights, depending upon who the owner is ultimately determined to be.  Garcia registered the copyright of the Obama image, as a prerequisite to a lawsuit, with a filing date of March 17, 2009.

More Resources/References:

Boies Schiller in for Shooter as “Hope” Poster Case Takes New Twist (includes a link to Garcia’s court filing) AmLaw Daily.

Related:  [Art]work for Hire (explained in more detail) ArtUntitled.com.

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