Posts Tagged ‘associated press’

Fairey Admits Falsehood re Source of “Hope” Image; Lawyers Quit

October 17, 2009

The Associate Press reported this morning that lawyers for artist Shepard Fairey, infamous creator of the Obama Hope poster, are withdrawing from representation over admissions that the artist misled them.

Fairey reportedly admitted that he intentionally misrepresented the actual source photograph for the iconic poster at the heart of AP’s copyright infringement suit against him.  The admission affirmed AP’s position that the source was a close up shot of then candidate Obama, rather than a wider shot that included actor George Clooney as Fairey had stated in his complaint against AP.  On Friday papers were filed in federal court, amending the complaint with Fairey’s new position.  At least some of the lawyers involved reportedly intend to seek court permission to withdraw in the near future.  According to the New York Rules of Professional Conduct, lawyers may with draw from representation under certain circumstances that appear to be similar to those described.  (Rule 1.16)

Fairey had presented some interesting arguments, including that of the limited access to images of famous persons as a reason to necessitate a fair use of such press photos. However, the future of Fairey’s case is now unclear.  While this information doesn’t necessarily kill his argument, the new information seems to implicate the third fair-use statutory factor, relating to the amount and substantiality of the image taken.  17 U.S.C. § 107 (3).  Presenting misleading information in a court document is serious–and certainly Fairey’s credibility has been damaged with the admission.

Related info:

Fairey’s complaint against AP

About fair-use, on

§ 107 statutory fair-use factors, on

UPDATE 10/20/09:  AP files a motion to amend its counterclaim against Fairey.

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

July 15, 2009

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)

Photography is Not Art

March 25, 2009

 The dispute over the Shepard Fairey Obama “Hope” poster has dredged up a slew of self-appointed art and culture commentators.  This includes a vocal minority  that has expressed viewpoints of the retrograde “photography is not art” variety.  For most people with any substantive knowledge of this topic, it is an issue that died in the 1970s – if not earlier.

 By the 1970s, the common “snapshot”  influenced photographic image making, both aesthetically and technically.  Photo-based artists began to examine and  use the familiar process in a conceptual way, and explored such popular media as the Polaroid SX-70 technology as well as low-tech Kodak Instamatic cameras and such.  Early in that period, there were some arguments about this type of photography, and whether such ordinary style imagery was “art” or something lesser.  However, as many Photo I students are aware, the weakness of the argument evaporated over time; photography is an art media.  Regardless of  technique or media, artistic images contain creativity (originality), intention, and decisiveness.

 There is also an older example of the “photography is not art” argument that was largely dispensed with by Burrow-Giles Lithographic v. Sarony in 1884.  This case recognized that photography was not purely mechanical; the process required the choices and decisions of the image maker, and therefore contained “originality” and qualified as copyrightable subject matter.  In the context of copyright, the originality needed is quite small, and the term also refers to the artist as the “origin” of the image.  Alternatively, in the terminology of visual art, originality sometimes means new, unique, or something having a recognizable style.

 Unfortunately, some of the recent dialogue on this issue stems from a fundamental misunderstanding of art, including photography, both in terms of the media and its conceptual position.  The efforts to redefine photography as not being “art,” is to attempt to categorize it as lacking creativity and having a lesser cultural importance.  The attack on photography as not art also misunderstands or ignores the nature of art/image creation and the significance of the artist or image maker in that process.  It recalls the pre-1884 position of the camera as an automatic image machine, and perhaps suggests another equal dispute over whether digital works can be art.  Paint brush or pencil, camera or computer; these are all tools of the artist.  And sometimes, deliberate non-intention is intentional.  That is the nature of art.

 The heart of the current anti-creativity dialogue seems to be trading on the issues of art for that of copyright.  That is, the attacks on originality are essentially aimed at the art aspect, or creative/value aspects of the photograph.  When a photograph is not art, it is essentially being defined as non-creative.  Something that is non-creative, or totally lacking in originality, would theoretically be ineligible for copyright protection.  This non-creative imaging might, perhaps, include something like a medical x-ray.  By attacking a (regular) photograph as non-creative, the proponents of this perspective are making a results-based argument.  There is a desire that the photograph not be art, and hence, not creative (original), and therefore uncopyrightable. 

 In a statement that revisits the 19th century notion that the photographic process is without  originality and is not  art, Luc Sante, in an interview with the Times has described the type of photographic image taken by Mannie Garcia for the Associated Press as one that may have been created “by a child or robot or chimpanzee.”  That is, one which does not include sufficient intention, creativity, choice, or significant participation to qualify as art.   He associates photographs of this sort with “luck,” AKA, a random occurrence or accident.  (One can only wonder what he thinks about action painting). The denigration of Garcia’s intent, creative decisions, observation and participation is a peculiar position for anyone possessing a credible knowledge of the media.  Despite Sante’s opinion, Garcia’s photograph certainly must contain something original as Shepard Fairey was sufficiently struck by it to select it after sorting through hundreds of images, as he apparently had.

 One voice of  knowledge and expertise quoted in the same Times article belongs to Anne Tucker, a recognized expert and a highly respected curator of photography at the Museum of Fine Arts Houston.   She was apparently interviewed because the museum purchased both the AP/Garcia photograph and a copy of Fairey’s “Hope” poster for its collection.  Ms. Tucker stated that she “strongly disagreed with attributing Mr. Garcia’s success to dumb luck”  and provided a succinct metaphor as well,  “[w]hen Willie Mays was exactly in the outfield where the ball came down, that was not an accident.”  Well stated.

 Mannie Garcia does not refer to himself an artist, according to the Times, however he says that there is a distinction between taking a photograph, which alludes to an automatic or mechanical process, and making a photograph, which infers creativity and intention.  He says, “I could put that [camera] on all programmed settings and automatic — that’s ‘taking a picture.’” However, this also illustrates a distinction between Mr. Garcia’s perspective and that of a person using the photographic medium from an unambiguous art-based position.  An artist, or anyone for that matter, may use the automatic camera settings to create an intentional image–an image that includes originality. The active involvement of a human being with a camera is simply a different level than that of an x-ray technician pushing a button.  For his job, Mr. Garcia is trying to create a specific aesthetic and the use of manual settings is often necessary for that goal.  Also, it should be pointed out that despite Mr. Garcia’s assertions, even if he were to use automatic settings, the image that would result from his intention would still be copyrightable–simply based on his decisions and participation in the process.

 Regardless, the Times’ author takes the position that accident or luck is at the core of photographic image making and that premedition is a critical aspect of art or originality.  To support his position, Noam Cohen states that both Alberto Korda (creator of a famous Che Guevara photograph) and Garcia were “covering something else” at some type of larger public event.  This is a weak argument for discounting the photographer’s involvement in creating an image.  The act of observing the details within a larger scene are well within the traditions of photography and art in general.  Cohen infers that the images of Guevara and Obama resulted by chance and this is an indicator of the lack of creativity (originality) on the part of the image maker.  Chance, it should be noted is not the same as accident or luck, rather it is more like opportunity. One can choose to take it or not.  The image maker decides to push the shutter release at a particular time––something in that person’s consciousness caused him or her to take that action.  Without the action, the image wouldn’t exist; it originates with the person.  Cohen also says “Only later did the photograph capture the public imagination, reworked by artists to reach its ubiquitous status.”  (Emphasis added).  However, this argument dismisses the integrity of the image–the photograph itself–outside of the context of public dissemination.  It also does not account for images that “capture the public imagination” somewhat after the fact.

 These types of arguments have primarily arisen out of the hoopla surrounding the Fairey v. AP lawsuit and sometimes, as in much of the article reviewed here, fail to provide a supportable analysis of both the art and legal issues.  Regardless, there appears to be a multi-fronted attempt  to disparage Garcia’s photograph as unoriginal.  In a similar angle, Lawrence Lessig and his group have solicited information on photographs similar to Garcia’s in an apparent attempt to undermine the originality of the image as well.  The goal is apparently to dispute its eligibility for copyright protection, even though this does not appear to be an issue in the suit itself.  The project seems to be either a misunderstanding of copyright, or a misguided attempt to alter the copyright definition, rather than an effort to expand fair-use.  Regardless, tactics that make a weak point by bashing photographs as not art are not only pathetic, but fundamentally incorrect as well.  A well-reasoned argument for expanded fair use would be much more beneficial.


Read the full Times article here.


More on this Topic:

Shepard Fairey on Fair Use:  the Rachel Maddow Interview 

A Fair Use Battle Intensifies 

Obama Icon Takes on the Copyright Ac



Integrity Lost: Lawrence Lessig helps Shepard Fairey