NPR’s Fresh Air asked Shepard Fairey, Mannie Garcia, and a law professor about the the Garcia photo, the lawsuit, and fair use.
Notable parts of the transcript…
How did Shepard Fairey pick out the image for the Obama piece?
FAIREY: Well, I looked through a lot of photographs, but I had an initial concept that I’d like to divide Obama’s face in highlighting shadow between tones of blue and red. So, it was really the direction of the gaze which I felt looked presidential, looked like Obama had some vision and some leadership, and that combined with the way that the light was falling.
…why did he decide to sue the AP?
FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.
And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.
And the meaning of their art pieces is completely different than the original intention of the source image and adds a new layer, a new value. It’s transformative, and I think it should be fair use. And I felt that I needed to fight the AP not for myself only, but for a whole group of artists that would be self-censored, probably, because they can’t afford the photos and they don’t want to be in a legal entanglement over using those types of images to communicate a message.
What was Mannie’s reaction when he found out the reference image was his?
GARCIA: Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto 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 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.
**Currently AP over who owns the copyright.
And finally…
Professor GREG LASTOWKA (Rutgers School of Law-Camden; Visiting Professor, Columbia University): One thing that’s really important about fair use, they need to understand, is the Supreme Court has said that each fair use case needs to be decided individually, and there are no bright-line rules. And that’s one of the things that’s most frustrating about fair use because if you look at these four factors for fair use, none of them are strictly controlling, and you can find a case that has, you know, one of these factors going one way or the other and a finding of fair use or no fair use.
About the recent Facebook uproar…
Prof. LASTOWKA: I see it as very relevant because I think the reaction of the public to something like, you know, Facebook’s changing the terms of service, the fear that someone else is going to be able to monetized the creative work that you’re uploading to Facebook shows that we all feel like we are authors and proprietors of the content that we create. So, yeah, I think it’s very relevant because it shows the public’s reaction when their own authorial interests are at stake.
—Very interesting. I thought about this on the train home tonight…
In this blog, I am trying to share and showcase some of the most interesting and beautiful content and creations that other people have created that I have found on the internet. I always try to link back and give credit or at least link back to where I originally found it (or I probably won’t post it).
I now wonder if Shepard Fairey had originally given credit to Mannie Garcia during the Obama campaign, would there still be an issue?
In these hard economic times the issue is very much monetary but it’s not to say that credit is worth less (or worthless?). If Mr. Garcia had received credit and had his name brought up in a more positive manner rather than in the middle of a legal scandal with a very high profile person in the art and design world, would he have gotten more work as a result? Or any money? For an important political campaign that was considered to be a non-profit situation, would money have been an issue if all parties had received recognition?
It is always important to be recognized. I think that the public in general “thought” (knew/understood) that the Shepard Fairey image was based off of a reference, but neglected to acknowledge that fact because of how Fairey treated the work. It is not a photograph that has been altered. It is a drawing/design that was based off of the image, which should fall under fair use. Whether or not it was legally under fair use, it is still, I feel, the “right” thing to do to acknowledge others works.
Does common courtesy and honesty still exist?