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.

barack-is-hope CLOONEY DARFUR

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.

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Comments on “Shepard Fairey Case Gets More Complex: Mannie Garcia Claims The Photo Is His, Not The AP's”

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John Doe says:

This one is a tough call for me...

I don’t really see the work as very transformative. Everything about the poster comes from the photo except it has been made cartoonish. There are Photoshop actions that can produce results like this and that is quite likely what the artist did. The fact that he ran an action doesn’t mean it isn’t transformative in itself, but that is all I see that has been done. The pose, the lighting, everything else is purely from the photo.

Anonymous Coward says:

Re: Re: Re: This one is a tough call for me...

Ah, the light falling on a 3d head is what’s under copyright. So the same picture that removes the 3d image and removes the light by substituting colors and placing shadows in different places violates the 3d and light copyright? No.

Let’s think about this a minute longer. Let’s take 2 photographers and place them side by side continuously taking pictures of the same subject. Will anyone be able to tell one picture from the other if the only difference is a slight angle? So what’s really copyrightable here?

Ryan says:

Re: This one is a tough call for me...

I don’t see how the original work provided anything to Fairey’s. It looks completely incidental; Fairey just happened to pick this image of Obama to draw from, but nothing about the original image stands out afterwards(possibly the head tilt, but even that is very nearly generic and as Mike said not copyrighted).

Eli says:

Re: This one is a tough call for me...

I wonder (and have been meaning to find out) if the Obama poster that’s on display at the National Portrait Gallery in DC is THE image at question in the lawsuit. If it is, then it would be very helpful to see it in person or a high-rez photo of the Fairey poster.

The poster I saw in DC at the NPG is not the same as what you see online, like above. The Obama image is imposed on a collage of newsprint, some of which shows through the paint quite well, other parts not at all (I couldn’t tell the age of the newspapers, but some of the illustrations looked as though they were from decades past). Also, there are at least several stencils in areas, done in the same colours as the paint for the image. The poster I saw was not a flat image, but had texture and detail that is lost in the most standard jpegs I’ve seen of the poster.

If that is the work at issue, then I believe Fairey has a stronger case for transformative fair use than I had given him credit for at the outset. And I really need to put my trip photos on Flickr … (And yes, I took several photos of the poster … don’t sic the AP on me!)

Anonymous Coward says:

Re: This one is a tough call for me...

If it took months for someone to figure out which photo this originally came from than that clearly indicates the photo is transformative. In fact, you could argue whether that photo is truly the source of his work because other than the pose of Obama’s head you can’t recognize any element in the original picture and his version. Maybe he made if from another similar picture. Who really knows?

shelley says:

Re: This one is a tough call for me...

The fact is Fairey CREATED the work of art that is now recognizable. Not this dude. Maybe he wishes he would have thought of it, maybe he’s upset his photo wasn’t as important as the screen print. Who even cares if it’s illegal? It’s art! It’s only by chance it’s known to others. My friends and I rip off shit for screen prints, paintings, fliers, or whatever. The only difference is our art isn’t profitable so nobody feels taken advantage of. That’s what artists do. They create from there environment. From an urban landscape to an iconic image found online at 3 in the morning. It’s too bad making art had to leave this guy in a stupid legal battle that can only translate to “where’s my slice?”

Ryan says:

Re: Re:

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

Anonymous Coward says:

Re: Re:

Sounds to me like neither the person who wrote the article nor those who’ve commented understand copyright very well. Consult your lawyers. Garcia (or AP) owns the photo and he gets to decide who gets to use it. The Fairey case is not an instance of fair use.

Doesn’t seem like you have anything to support your non-lawyer opinion with, so we’ll file you in the “shilling for the big man” category.

Mike Masnick (profile) says:

Re: Re:

Sounds to me like neither the person who wrote the article nor those who’ve commented understand copyright very well. Consult your lawyers. Garcia (or AP) owns the photo and he gets to decide who gets to use it. The Fairey case is not an instance of fair use.

Hmm. Much of my thinking on the case was informed by Peter Friedman, a law professor and expert on copyright law and fair use. Are you suggesting he’s wrong? Also Fairey is being defended by the Stanford Fair Use Project, who are experts in fair use.

Do you have anything to back up your claim that all of these fair use experts are wrong?

Almost An Anonymous Coward says:

Re: Re: Peter Friedman

Mike, what Friedman and the Standford Fair Use Project is trying to do is expand the law in this area. They are sort of ‘judicial activists.’ Not that there is anything wrong with trying to do that. In fact, I applaud them in their methods. It is the people that take the law into their own hands and provide a mechanism or should I say a server(s) to facilitate illegal infringement and then claim that because there may be non-infringing uses they can’t be held liable. BTW, allowing unlimited access to the public to your own PC is the equivalent of a web server. They hide behind an outdated DMCA which is the real problem.

peter (profile) says:

Re: Re: Re: Peter Friedman

Coward – I’m not an activist; I’m applying the law as I see it. In Blanch v. Koons, the 2d Circuit held that Jeff Koons’ use of a commercial photo in a painting was fair use. The court held that Koons’ work sufficiently “transformed” the copyrighted work that it stood on its own as a creative work in its own right. In doing so, the court stated that it would not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” But Koons’ painting passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”

Why do I think Fairey’s work is transformative? It had a tremendous resonance with and impact on the national political scene. Imagine substituting Garcia’s photo for Fairey’s image — do you believe it would have had nearly the impact? I can’t imagine you do.

In addition, as Mike wrote, I think there is very little if any in Garcia’s photo that is “original” in the first place. see for authority supporting this point. The subject, Obama, is as uncopyrightable as a subject can be, and except for the camera settings, and the choice of the camera, the elements of the photo were entirely out of Garcia’s control.

Nor did Fairey’s image have any negative impact on the market for Garcia’s photo. In fact, I understand, Garcia’s photos now have a market they never had before. Fairey’s image, in other words, added value to Garcia’s work!

There’s nothing activist about this position. I don’t write as an activist. I have no dog in that hunt. I try to call them as I see them.

John says:

Re: Re: Re:2 Peter Friedman

I might also add in discussion of transformative work under fair use law, for those who have a lay knowledge of the history of graphic design and the evolution of propaganda, that Shepard Fairey’s Hope campaign is entirely unique in that it is both at once political propaganda and strategic, commercial identity, effectively branding the president of the United States for the first time in history.
I personally feel it has transcended the infamy of, what was until now considered history’s most infamous propaganda campaign, Hitler’s. No photo has ever achieved that. Most people can’t even comprehend the vast disparity between the source photo and the graphic image. Regardless of what the source was, the end result is a clear and acceptable work of art protected under fair use law. Period. It seems few people actually know anything about what copyright law is, is for, and why it exists. The fight is not to uphold the law, nor to do what is right and just. It is for money and nothing else. If there was no source of money in the image, the AP wouldn’t even bother with litigation.
The irony is that when I myself first saw the image, it seemed rather cliche at the time, and bore style that seemingly brought nothing new or unique to the table. I couldn’t have been more wrong. Also, the further and deeper this argument continues, the more significant the work becomes, effectively justifying it under the law that PROTECTS and VINDICATES it, though I wouldn’t bring that argument to court. It has also simultaneously become a landmark case in copyright and fair use provisions that will likely become textbook discussion in universities for years to come.
The rest of us can only dream of achieving such an impact with anything at all in our lifetime, let alone with a “simple” 3 color screen print. Shepard Fairey truly is a master…and welcome to take ANY thing I create to that kind of level. For free.

JAy. says:

I agree with John Doe on this one – I have a hard time deciding if this is infringement or not.

I think that the real determination for me is how Fairey created the poster. If he used the image, manipulated it digitally, and produced the poster, I would say that it is infringement.

If he saw the photo, hand sketched Obama into the poster, and then added the text, button, etc., I do not think it is infringement.

Basically, the determinant for me would be: What did Fairey start with when he created the poster – a blank canvas (digital or physical), or a picture which he manipulated.

(Admittedly, I haven’t researched the story enough to know the answer to my question.)

Anonymous Coward says:

Re: Re:

So, you base your support on the amount of effort put into the artwork, and not the amount of differences between the original and altered works?

What if they did a photo-realistic painting over a month that looked IDENTICAL? What if they spent 2 minutes, ran it through morphing software that completely changed the physical appearance so that it appeared to look like tie-dye?

Would the photo-realistic painting be infringing? Would the tie-dye design?

The amount of effort or process that goes into creating artwork is irrelevant. It’s the end result that matters, and this appears totally different in that other than the positioning of the subject, no other original artistic attribute is maintained. Colors, hues, tones, lines, all are altered. Does it really matter that much what it took to achieve that new, and original look?

JAy. says:

Re: Re: Re:

No, it isn’t effort, it is origin of content. Had he flashed the picture on a wall and traced it, it could be infringement. If he merely looked at the photo then traced free-hand, that might not.

In looking at fair-use doctrine, the original nature is a photograph which was marked as copyrighted in the digital format. If the digital file was simly converted to 4-bit grayscale, then colored, that would not indicate to me considerable transformation, but more derivative. Hence that would fail the first prong of the fair use test. At least one of the other three prongs is clearly violated, while considerable argument could be made for the other two. Hence, this prong could make or break the fair use defense in this case.

DJ (profile) says:

Re: Re: Re:

stop simplifying a complicated argument and maybe, just maybe, you’ll actually understand that argument enough to argue for or against it.

So i’ll stress JAy’s point…AGAIN. It’s not a case of HOW Fairey did it, it’s what he started with and how much of a transformation took place.

Even without a specialized program, such as Photoshop, I could take that photo and simply change the color and background; that would be infringement. Even if I started with a digital photo, though, I could change it enough to call it “transformed”.

batch (profile) says:

Are pictures of the president of the USA copyrightable?

I realize that’s what this lawsuit is all about, but hear me out: Isn’t he pretty much a public resource? He’s an elected official, paid with tax dollars, and anything he writes while in office has to be made public (if I understand correctly), so how could his image not be free from copyright?

Ryan says:

Re: Are pictures of the president of the USA copyrightable?

Not a bad thought, but nobody’s image is copyrightable. It is only the particular expression–i.e. the creativity Garcia displays in this one image. Doesn’t seem like there is much of that evident here, and whatever it is certainly isn’t evident in Fairey’s.

batch (profile) says:

Re: Re: Are pictures of the president of the USA copyrightable?

Thanks for the response, Ryan. I wholly agree on the lack of creativity in the photo; had the photographer been actively working with the president on the pose and arrangement of the flag, I can agree that the claim may hold water enough for a court to decide, but that is just not the case in this situation.

Nathan Derksen says:

Re: Are pictures of the president of the USA copyrightable?

Copyright has little to do with the subject, and everything to do with the expression of the subject. Whether you take a photo of a nature scene, an anonymous person, a famous person, or a public figure, the copyright of the image taken belongs with the photographer, and they have all the rights that copyright law extends to the owner. It’s the same with written works, you can’t copyright Einstein’s famous energy formula, but you can write about it and be protected by copyright for that.

J says:

Re: Re: Are pictures of the president of the USA copyrightable?

Guess what, Shepard Fairey didn’t take a photograph ? he created a unique and prolific work of art. Copywrite law is very extensive, with many exceptions in varied situations, and most people here are not professionals in this field. This is, in fact, one of history’s greatest political images to ever exist. That did not come from a photograph, otherwise the image would have been infamous beforehand. This is what transformative art is – Where the purpose, meaning, and message is altered. Parody is a form of transformative that everyone is familiar with. Without fair use, we would not have a world of parody and comedy because everyone would be sued.
The masters make it look easy, which is why some idiots think it can be accomplished with a Photoshop action. It looks deceivingly simple. The image though has an entirely different dynamic and life, something that can only be understood if one actually attempts to do exactly what he did. Try it – take any photograph (but contact your lawyer first), and transform it into the traditional style of Soviet/German propaganda. By the time you’re done, you’ll change your mind.

Marc says:

Re: Are pictures of the president of the USA copyrightable?

Obama’s image is something else entirely. This falls under likeness rights. Since Obama is a public figure, you don’t need a model release (depending on usage) for his likeness.

Artwork made from his likeness falls under copyright and the copyright is held by the creator of the artwork (not the subject).

Seth says:


I find it interesting what people become when there is money to be get. All this legal BS just because the one dude made a successful work and money with it that the other tries to rip out from him changing his previous stance. I call people like him people with no spine, or leaches.

Guess the lawyers are the ones most happy about this.

J says:

Re: Re: Re:

Actually, come to think of it, I do know that a photographer is required by law to obtain a signed model release to actually publicly release the photo of a clear, recognizable individual, and is absolutely required by law to use it for commercial purposes. A photographer is not just granted automatic “rights” to do anything he wants with a photo he/she took, just because they took it. Using that rationale will get a photographer in just as much hot water themselves. I don’t know what conditions apply with the president of the United States (maybe it’s an exempt area?) but I doubt that Garcia had Obama sign a model-release form which would entitle him to cash in on the image for personal gain. Anyone know more on this area?

peter (profile) says:

legal change and activism

Coward – one more thing on activism. You might understandably confuse what’s going on in copyright with legal activism because, indeed, the law is changing. But it isn’t changing because “activists” are pushing change. It’s changing because the entire material foundation on which the copyright regime you defend was built is changed. You can’t reduce the cost of copying and disseminating information world-wide to near zero and maintain a legal regime that is founded on technology that requires far, far more to copy and disseminate information. Law that tries to stand still in the face of such material change is law that’s bound to be unenforceable. Look at any law that purports to make unlawful activity that it cannot stop — drug laws, among others — the enforcement of such laws ends up in creating far more problems than it “solves.” We have more and more serious drug addiction problems than ever, and we spend enormous sums of money to make into criminals and house in prisons a population of non-violent offenders. What do we end up with a lack of fit between technology and the old status quo in copyright law? The RIAA making no dent in music downloading and imposing insane penalties on individuals who, as far as I can tell, suffer those penalties as a matter of pure chance.

Anonymous Coward says:

Re: legal change and activism

Vote for Ron Paul. Our corrupt media may try to portray Ron Paul a certain way but if you listen to him he makes sense. At the very least listen to his position. Go on youtube and look for Ron Paul, start reading about his position, listen to his responses to questions. He makes a LOT of sense. That’s why our MSM (mainstream media) doesn’t like him. They would rather favor rich and powerful entities.

Also, we need to ensure voters are heard.

We should DEMAND a more transparent voting system that also ALWAYS allows people to write in votes.


(look at my posts, my nick is Bettawrekonize ).

Ray Beckerman (profile) says:

Problem is fact we're discussing it

The sad thing about fair use is that the way it has evolved, it creates an enormous burden on creative people, and forces the suppression of worthwhile work. The mere fact that we are debating back and forth about whether it is or is not transformative, is the problem. A creative person should be able to know ahead of time whether or not he can do it.

Projects which require insurance, such as films, are virtually prohibited from relying on fair use, because the corporate insurers will simply not accept that as a basis for utilizing the material, regardless of how “fair” the use. Either pay the big bucks for the clearances, even for fleeting references, or forget about it.

It’s really unworkable, and the need for a uniform set of standards has never been greater.

By the way, IMHO… it’s a slam dunk fair use. And yet, it would not surprise me if the Court puts Fairey through the enormous burden of pretrial discovery + full blown trial.

Michael Maddux (user link) says:

Re: Problem is fact we're discussing it

As a creative person who is a Video game dev and uses Photo Manipulation Software all day in the course of my work… I can say with certainty that this is not copyright infringement. It is “fair use”. The image in question has been manipulated in a “transformative” manner. I do not care if he traced it or hand drew it. At the end of the day all you have to prove is whether the art in question has been changed from its original intent and use. Frankly copyright always seems to rear its ugly head when money gets involved. As someone already stated this would have been a non issue if it was not Obama and the current events that go along with it had not happened.

And as a finish to this thread, as a artist and a visual communicator I know that “all” artists practice “creative license” as part of their stock and trade. Furthermore any art you see has had elements lifted from previous art…. even our great painters used Mother Nature herself as a medium to lift from. So lets all get over this and let the artists make more art and enjoy all of it as all art is meant to be enjoyed.

Paul (profile) says:

Simplified to the Essence

This is just yet another of the fifteen thousand arguments covering everything from look-and-feel (remember Lotus?) to copyrights and software patents.

The difference here is that, instead of revolving around the arcane technical details of software algorithms or esoteric legal arguments of business process patents, this one is boiled down to the very basics, and thus clearly comprehensible by almost everyone — even the legal system. Perhaps we will finally begin to get some clear guidance about what we can and cannot (legally) do.

Peter Nissando says:

everyone looses now

I think after Mannie Garcia had a bit more of a think about it unfortunately the money has got the better of him and he has turned troll to get something he really doesn’t deserve. Let’s assume he does own the copywrite to the photo in question, is the Shepard Fairey artwork a copy or an interpretation of the original. And as the detail has been removed, colours and background altered, I have to say it is a interpretive work. Mannie should be proud, the Allied Press should take their money picking hands and keep them to themselves and Shepard should have been quicker to say thanks for the inspirational photo. All money made should go to a good cause, no one deserves to profit from this. It isn’t that special anyway.

Lcabral says:

Seems absolutely ridiculous that someone can own a picture of any public person and profit with it… If it comes to that person demanding royalties for his image being used to make profit I’m sure that copyright laws will make sure AP will still get its way not to pay anything…
Copyright laws only concern are made to allow one only company to profit from it.

Wallace Wattles (user link) says:

The common conception is that Fairey’s discovery shenanigans were tantamount to a game changer in terms of how the court will come out. But the law is pretty clear that although perjury is a big no-no but doesn’t mean much in a copyright infringement suit

Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn’t really pertinent in fair use.

As much as I’d like to see the court find fair use here, I don’t think it’s necessarily open-and-shut fair use on its face because of the effect on the market factor.

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