Shepard Fairey Case Gets More Complex: Mannie Garcia Claims The Photo Is His, Not The AP's
from the the-shifting-feelings-of-Mannie-Garcia dept
The Shepard Fairey case continues to get more and more bizarre. You may recall that, back in January, someone figured out which photo Shepard Fairey had used as the basis of his iconic Barack Obama poster.
Fairey never denied using a random photo he found online, but had no idea which one. Once the correct photo was found, the photographer in question, Mannie Garcia, didn’t seem to mind at all. In fact, we wrote about how nice it was that he didn’t cry out infringement, but instead he was happy the photo was used:
“I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work.”
On top of that, his only request would be getting Fairey to send him a signed copy of the poster:
“I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”
Of course, soon after that, the Associated Press, for whom Garcia was working at the time, demanded money from Fairey, and the two are now involved in a lawsuit over the issue. When that happened, I remember reading an interview with Garcia (which unfortunately I can’t find now), where he noted that he never signed anything granting the AP the copyrights to his photos. But, more recently, it seemed like Garcia had done a total 180 and now claimed he was upset by the poster:
“When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn’t belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it doesn’t mean it belongs to you.”
There’s no way to square this with his original comments. One of them is untrue. But, perhaps the lure of getting some extra cash got into Garcia’s mind… That theory might gain some more weight given that he’s now filed with the court to “intervene” in the case, claiming that he holds the copyright on the photo and the AP is falsely claiming that it holds the copyright. On top of that, though, the filing says that he believes Fairey infringed on Garcia’s rights. Again, this does not seem to agree with Garcia’s original comments which certainly brings his motives into question.
The whole thing is pretty ridiculous. The fact that neither Garcia nor the AP noticed that it was this photo that was used makes a pretty strong case that this use was transformative fair use. On top of that there’s an argument that Fairey didn’t make use of any of the actual creative elements of the photo (i.e., the stuff that’s actually copyrightable), and thus there’s no infringement. But the bigger point? This photo would have been lost in a sea of other Obama photos if Fairey hadn’t used it. The fact that so many people now even know of Garcia’s existence as a photographer is due entirely to Shepard Fairey. If anything, Garcia owes Fairey a huge thank you for promoting his photograph.