Fairey v. AP v. Garcia v. Fair Use

So last night I listened to the Fresh Air program about the copyright/fair-use kerfuffle between Shepard Fairey, Mannie Garcia, and the Associated Press (AP). Both Shepard and Mannie were interviewed separately by Terrie Gross, the AP submitted a pre-written statement, and law professor Greg Lastowka commented on the merits of Shepard’s fair use claim.

crop of the iconic Obama Hope poster

For anyone who has not been following the course of events, the gist is that Shepard based his iconic Obama Hope Poster on an photo credited to the AP that he found in Google Image Search. He did not know who the photographer was, and readily admits that he did not try to track down the photographer to ask permission. After the election, a flurry of activity was directed towards discovering the original source of the poster, and after one or two false positives, it was discovered that Mannie Garcia had taken the photo of Obama, back in 2006, attending a Darfur event with George Clooney.

Source of the iconic Obama Hope poster

Here’s where it gets weird. At this point, the AP contacted Shepard and asked to “work things out”. Shepard says he was willing to pay the license fee, but that the AP wanted additional damages. The AP says they just want to assert their copyright, and were willing to donate the undeclared sum of money to a charity. At this point Shepard preemptively sued the AP to declare his use of the photo protected under the fair use clause of the copyright law, particularly emphasizing the transformative nature of his artwork. Meanwhile, Mannie Garcia alleges that his relationship with the AP at the time did not assign copyright ownership to the AP, but to him. In the press it seems like he has no interest in suing Shepard, but rather has benefited by the increased exposure of his work and name.

What disappointed me last night was hearing Mannie promulgate a rather naive understanding of copyright. He sounded unsure of himself, uncomfortable, slightly combative, almost as if his words were not his own. It made an all the more stark contrast with Shepard, who comes off surprisingly articulate, intelligent, well-spoken, well-reasoned, and passionate about his art.

Here’s what Mannie said:

I was disappointed that someone was able to go on to the internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand. 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.

Now I’m sure Mannie is an incredibly professional and experienced freelance photographer, it’s just disappointing how inexperienced, and unnuanced his understanding of copyright and fair use is.

Actually his statement above is patently wrong. I can go on on the internet, and take something that doesn’t belong to me and use it. And that use is legally protected under copyright law, depending on how it meets any combination of the following four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market. And there’s no one formula that determines whether one’s use is protected or not. Each has to be debated individually on its own merits, in a court of law.