I scrolled down, not really sure what I was looking at, or what I was supposed to be looking at. Then I see a photo. Looking closer, one of the photos in the photo looked like toddler-Justin. Actually all of them were. Pictures of me wearing the overalls that my mom had embroidered with gnomes.
Speaking of clothes embroidered-by-Mom, you might recall my Hot & Spicy apron, previously seen here and here.
I remember seeing one of these on the messenger bag of some dude on a motorcycle riding alongside me down Lombard, back when I used to scoot over the bridge to Sausalito every day. Seeing the “Death Monsters Ahead” stencil graffiti made me think of it again.
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.
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.
For a game that is supposed to represent the nadir of moral depravity, I find myself oddly drawn to the visual design of this poster. Maybe I just still want a motorcycle.
