The issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portrait of Obama titled ‘Hope’. The story has caused an outrage among photographers and supporters of copyright protection due to the fact that Shepard Fairey did not ask permission to use Garcia’s photograph and failed to give the photographer credit.
Fairey has stated that he did not know who the photographer of the Obama photograph was and that he found the image randomly online. However, Mannie Garcia claims that the Danziger Gallery, which represents some of Fairey’s art, contacted him on the 21st of January 2009 to inform him that his photograph was in fact the basis for Fairey’s Obama posters. These conflicting reports demand answers. Could it be that Shepard Fairey knew who the owner of the photograph was all along? If so, why did he not reach out to Mannie Garcia? Did he intentionally avoid contacting Mr. Garcia due to monetary reasons?
Did he willfully infringe upon Garcia’s copyright?
Did he willfully infringe upon Garcia’s copyright?
From what I’ve read it appears that art law professionals are split on the issue. Peter Friedman, a visiting Professor at the University of Detroit Mercy Law School, has stated, “The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative”. However, Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, has stated that though the photograph is “transformed” to a “sizable extent” the photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.
The Art Law Blog has mentioned that Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”
Richard Lacayo , writing for TIME, has stated that Mannie Garcia will have difficulty if he changes his mind about taking Shepard Fairey to court. Lacayo stated, “And if he changes his mind about the not-seeking-money part? He might find it hard to make a case in court. In lawsuits over image appropriation, judges commonly try to decide whether an artist's re-use of earlier material is "transformative". If the new image passes that test, the appropriation is protected by the fair use doctrine, which permits limited reproduction of copyrighted material.”. However, Lacayo goes on to say, “the law in this area is vague and outcomes are very unpredictable. That's even the view of Pierre Leval, the federal appeals court judge who first proposed the influential "transformative" standard in a 1990 Harvard Law Review article.”
Based on the comments I’ve read concerning this issue it appears that many individuals in the art and photography community would like Mannie Garcia to take legal action against Shepard Fairey in order to send a clear message to other individuals and corporations who infringe on copyright protected images. Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.
A debate among lawyers and other interested individuals can be found at PrawfsBlawg . Shepard Fairey has yet to comment about the copyright infringement allegation involving Mannie Garcia’s Obama photograph. However, he has stated that the Obama posters, “Belong to everyone”. That said, he has previously threatened to take legal action against individuals who have profited off the posters and artists who have infringed on the posters copyright.
In the past Fairey has stated that artists who question the validity of his work are “jealous” of his success or that they are distracted by “apathy”. Some of those charges have been thrown at me for being critical of Fairey's art. Mr. Fairey, most artists just want to make sure that copyright is acknowledged and that the rights of fellow artists are respected. A businessman such as yourself-- having defended your own copyrights-- should understand that. If you feel that my opinions are wrong you are more than welcome to contact me in order to set the record straight. If you want a gloves off interview… I’m game.
Links of Interest:
Take care, Stay true,
New York Art Exchange