Terry Gross of NPR’s Fresh Air asks Shepard Fairey about the the Mannie Garcia photo and the lawsuit then she talks to Mannie about it and finally she talks to a law professor about fair use. You can listen to it (here).

I pulled a few relevant passages out of the transcript for you here.

–How did Shepard Fairey decide what image to use as the basis for his poster?

Mr. 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?

Mr. 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 image was his?

Mr. 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.

–Mannie also talked about his dispute with the AP over who owns the copyright. I haven’t heard or seen the AP produce the contract or agreement with Mannie that says they own it so I assume they can’t find it or there’s problems with it.

–And finally Terry talks with a law professor about fair use.

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.

–Terry asks him 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.

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  1. VERY interesting. Peter Friedman had some related commentary about the issues surrounding Copyright here that is quite interesting:


    His arguments certainly make sense to me, but raise all kinds of new questions. For instance, if wire service photography in and of itself isn’t “creative” work, i.e., there’s not a whole lot of literal lighting and composition that goes into the shot, then does Copyright law *truly* apply to it?

    Judging by my interactions with wire service photographers over the years, there *is* usually an extraordinary amount of effort put into framing the photo that could qualify as “creative” expression, so I’m not sure how it would all balance out.

    Your thoughts, o sage Photo Editor? :)


    • @Brian L.,
      It’s the first quote from Fairey where he said he looked at a lot of photographs before he selected this one. That indicates to me that the photograph had qualities in it that were not available in other pictures of Obama.

    • @Brian L.,

      I wouldn’t put the work of wire service photogs below that of other photographers, especially in light of the current argument. A photo is a photo and the photographer still has rights regardless of how “creative” the photo may or may not be.

  2. I agree that Fairey’s poster elevated the original photographic work, taking it from relative obscurity to global renown. That does not give him the right to the original work. The whole fuss would seem to be a non-issue if he would have just licensed the image from the start. Let’s remember that he doesn’t deny being a “commercial street artist” and had to know that his poster would have some legs.

  3. Fairey made a comment that I hear again and again in defense of appropriating other people’s work — “…These are all things that were created by people who probably don’t have the resources to license an image.”

    And again, in the next paragraph:
    “… a whole group of artists that would be self-censored, probably, because they can’t afford the photos…”

    What the hell?! I can’t afford to buy a new Hassleblad H3, either, but that doesn’t give me the right to walk in to B&H and just steal one. Lack of finance should not be a factor in determining fair use.

    • @Scott Hargis,
      Rightly said.

    • @Scott Hargis,
      In today’s United States of Obamaca, it’s share and share alike. That’s the socialist way.

  4. I hate Fairey’s reasoning (and just about everything else about him), but I have a feeling this will be found to be fair use, and for what it’s worth, I don’t totally disagree.

    And if I didn’t loathe Fairey’s “nothing is off-limits to me” attitude, I’d probably feel ok about it. Not good, but OK.

    Early in the interview he talks about taking pleasure in finding his stickers all over the world. His descriptions of those places seem to indicate that neither he, nor the person that placed them there, has any right to do so.

    He’s been accused of doing graffiti on buildings in Boston (at the age of thirty; a bit beyond where I’d be more willing to forgive a ‘youthful indiscretion’). He’s innocent until proven guilty, but such allegations go to pattern.

    He takes everything as his with that 1990’s, suburban bad-boy sense of entitlement, and sadly, his use of the AP’s image is the most legitimate and least bad thing that’s come out about him recently.

  5. Ah the bullshit continues. If a photo was used it needs to be paid for. Fairey copied a lot of work (like my ol’ pal the prince) in past pieces but because the Obama was so popular he got caught. GOOD.

    You can find good images to use on your Obamamania crap thats free.

    Check this out –

    so here’s another artist trying to cash in. I talked to the designer of this shirt about what Fairey is going through and the designer told me that he got a license for the image and…..that it cost nothing.

  6. I find this whole ‘fair use’ quite interesting. I am not a lawyer and I am sure this is a simple view, but without the photo to begin with, Fairey would have nothing. Period.

    Fairey should pay for a license – he is benefiting from someone else’s work.

    • i just listened to the trio of npr recordings. i agree with others…. fairey doesn’t make a very good argument for himself here. still, i have believed this was more on the side of fair use even before i heard this.
      i really don’t agree that he would have nothing without this photo. he would have found another and likely would have come up with almost the same poster in the end. he was looking for a particular position which he found in that photo. if it weren’t there he would have found another with a very close pose. i find it interesting that the photographer himself didn’t even recognize the image, nor is anyone positive as to which image was even used. i find neither the one he claims nor the one the ap claims to be dead on. it’s a very loose reference in my opinion.
      i am not close to a lawyer myself, but seem to fall on the other side of your argument. i almost always fall on the side of the photographer, but in this case i find the AP’s case questionable. Nothing like the lawsuit against richard prince.

      this all said, i do agree that to be safe, he should have licensed the image.

  7. For me the sadder part of the interview came when Garcia was discussing his own dispute with AP regarding whether he, as a free-lancer with no signed contract, was in fact “employed” by the AP. AP is claiming he “was obviously employed by the AP” thus all his images were works made for hire and therefore the property of the AP. But Garcia claims was a free-lancer, not an employee, meaning not on salary with full benefits, etc. and had not signed a contract granting such rights. If that’s the case then all works should remain Garcia’s property. I hope Mannie wins that one.

  8. This whole thing could have been avoided by Fairey if he had the simple decency to ask Garcia for the right to alter his photograph.

    This is not about whether this is Fair Use or not any more. If one read or listened to what Fairey has said so far, it is about a “me, me, me” entitlement mentality without any regards for other people’s rights or property. This is almost like a thief breaking into someone’s house, injured himself then sue the house owner for slippery floor.

    I say, Fairey, pay up, big time.

  9. obey are extremely robust at protecting their own rights, i’ve had problems with him myself – and the idea that he’s out there standing up for the punks is laughable.

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