Has Mannie Garcia Changed His Tune About Shepard Fairey's Obama Poster?

from the unfortunate,-if-true dept

Thu, Mar 19th 2009 7:11am — Mike Masnick

The Wall Street Journal is running an editorial by L. Gordon Crovitz, discussing the ongoing legal battle between Shepard Fairey and the Associated Press over Fairey's iconic poster of Barack Obama that was used during the campaign: barack-is-hope

The editorial admits that the legal issues aren't entirely clear, but definitely seems to lean towards the AP's side of the story, including making a rather odd assertion that this case is different than cases of people using snippets of songs on YouTube because "there's no opportunity to license snippets of songs and no harm done" to musicians whose music is used on YouTube. Now, I actually agree that there's really no harm done by music on YouTube, but I would imagine that some of the musicians engaged in ongoing legal battles against YouTube might disagree with Crovitz -- and he's not using the argument in the way we would. He's saying that music on YouTube is a different story compared to the AP and the original photographer who "make their livings selling their work." That may be true, but as I hope Crovitz knows, just because you make a living selling your work, it doesn't mean that fair use doesn't apply.

Also troubling is the false implication from Crovitz that since the AP and Garcia make their livings selling their work, this poster somehow diminishes that ability. I can't see how anyone could make that claim. In both cases, it would seem to have only increased the ability of both the AP and Garcia to make money, rather than decreased it. This particular photo wasn't exactly a huge money maker for the AP or Garcia -- and now it (and they!) are getting a ton of attention because of it.

But, perhaps most troubling may be the quotes Crovitz uses in support of his argument from the photographer, Garcia. As we noted way back when Garcia was first identified by someone else as the photographer, he didn't mind at all and even seemed flattered:

"I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work.... I wouldn't mind getting a signed litho or something from the artist to put up on my wall."

But, when Crovitz spoke to him, he seems to have changed his tune:

"When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. 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."

It's really too bad if Garcia has changed his tune. It was really great, for once, to see someone flattered that their work inspired someone to do something great with it, rather than becoming litigious.

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Filed Under: copyright, fair use, mannie garcia, photos, shepard fairey
Companies: associated press

23 Comments

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dan, 19 Mar 2009 @ 7:30am

sad
"that simply because it's on the Internet doesn't mean it's free for the taking"

WRONG. If this is how you feel than don't put things on the internet.
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Harold's #2 Fan, 19 Mar 2009 @ 8:15am

Re: sad
Hey! That's stealing!

I say you've deprived the originator of a digital representation of his work!! Copying those bits and bytes from the interweb slightly weakens the original--this phenomenon is obvious by observing "old photographs" which have been put online, they're all bleached and faded. That's because people are making digital copies!

Stop people from degrading our digital photographs!!!
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Kirk, 19 Mar 2009 @ 8:15am

Good Boy
I imagine work may have dried up for Mr Garcia until he got his act together and learned to sit. I can't say's I blame him for needing to eat.
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Harold's #3 Fan, 19 Mar 2009 @ 8:19am

Re: sad
The artist was an idiot for not protecting their picture in such a way some liberal artist could get a hold of it and allow that horrible pick of a candidate to be elected.
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mobiGeek, 19 Mar 2009 @ 8:39am

Re: Re: sad
Say the photographer had locked down their photo using Copy-N-Pay or whatever mechanism.

The artist in question would NEVER have bothered looking at that photo and would have used a different image (or would never create the iconic work in the first place).

The original photographer now cannot go about saying "I took the picture that is now a icon for a major historical event". That photographer instead is just another AP camera carrier.

So exactly how is it that using this image has harmed the photographer? Exactly how is it that he'd be better off not having this image used?
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mobiGeek, 19 Mar 2009 @ 8:44am

Re: Good Boy
You don't think that maybe he could leverage the fact that his photograph is the basis on which this iconic image was created to get more work?

He'd be better off without this occuring, his CV would look better with one less big bullet point?

If Fairey was blocking Mr. Garcia from referencing this image from his CV or in marketing his photography services, then I'd say there's something the argue about. But as it stands, the only thing this fight is going to do is make others very leery of working with Mr. Garcia in the future.
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anonymousSources, 19 Mar 2009 @ 8:49am

Feeding lines
Funny that I heard the photographer say pretty much the exact same thing about how he now feels on NPR's "Fresh Air" a couple weeks ago. I mean exactly the same thing... must be the phrase some AP lawyers told him to use.
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Anonymous Coward, 19 Mar 2009 @ 9:01am

Re: Re: Re: sad
Honestly I think there is something extremely important missing.

The bullet hole through the head and the brain matter splashed on the backdrop.
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anonymousSources, 19 Mar 2009 @ 9:04am

Here comes the secret service info request from that ridiculous comment. WTF?
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Analmouse Coward, 19 Mar 2009 @ 9:13am

Re: Re: Re: Re: sad
Ooh you got me all a raging sweety. what a clever young man you must be.

Here i was a reading a topical piece on the protectionist policies of outmoded companies in an online world and now you've gone and got all hugely topical and amusing.

i know its probably just to stir things up with a "Whitty" hate filled remark, but i shall now have to stand my ground firmly when i tell you to....

Cock off!
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Anonymous Coward, 19 Mar 2009 @ 9:18am

Re: Re: Re: Re: Re: sad
Now that I think of it, he is fine. But one thing people are going to learn, and are starting to see is that nothing is going to change. He may be the best leader in the world, but if his advisers give him bad advice and he takes it, he is no diff than any other president in recent history.
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Kirk, 19 Mar 2009 @ 9:21am

Re: Re: Good Boy
Point taken, but it really depends on what kinds of opportunities are available to Mr. Garcia. New efficiencies in journalism have got to be putting the squeeze on a lot of people in the business. If Mr. Garcia's phone suddenly stops ringing, is there room for his skills in other places that are laying people off? I sure the AP were none too happy with his earlier remarks; it’s got to be embarrassing. Perhaps he was looking to buy a house, and his realtor called him up with some steal of a deal that just fell in her lap. Then the next call is a friendly call from the AP asking him to revise his position. Whether through coercion or bribery, I’m certain we're seeing the AP's influence in this.
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GeneralEmergency (profile), 19 Mar 2009 @ 9:24am

The REALLY sad part of all this is...
...That none this craps deserves monopoly protection as it is all patently un-original.

Garcia's photo of Obama's pose that day is identical except for ROTATION and Left/Right flip to Alberto Korda's March 5, 1960 photo of Che Guevara.

http://en.wikipedia.org/wiki/File:GuerrilleroHeroico.jpg

Don't believe me? Here's the two side by side, rotation and flip adjusted:

http://www.rotorgraphics.com/cheobama/che-obama.jpg

In 1967, Irish artist Jim Fitzpatrick took Koorda's photo and made the now iconic "Viva Che" poster:

http://en.wikipedia.org/wiki/File:FitzpatrickChe.jpg

To prove my point that the Garcia photo is identical in pose to the Koorda photo, here is Garcia's photo turned into an Obama version clone of the Fitzpatrick "Viva Che" poster done with TRIVIAL effort:

http://www.rotorgraphics.com/cheobama/Fitz-Obama.jpg

Garcia's and Fairey's works are both UN-ORIGINAL and while copyright may be stupid enough to protect these works, there is no law protecting the reputations of these men of, in my humble opinion, little talent and even less honor.
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fliptrx, 19 Mar 2009 @ 10:10am

Anonym ass
I used to read your comments until this one...nevermore!

by Anonymous Coward - Mar 19th, 2009 @ 9:01am

"Honestly I think there is something extremely important missing.

The bullet hole through the head and the brain matter splashed on the backdrop.onym"
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Analmouse Coward, 19 Mar 2009 @ 10:23am

Re: Anonym ass
don't give up on the world because of one ass!..

I once listened to Neil Diamond.......
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Buzz, 19 Mar 2009 @ 10:36am

Re: sad
I agree. I really feel that these professionals do not deserve the benefits of the Internet if they are unwilling to accept the so-called pitfalls as well. The Internet is an inherently open system.

I get this feeling that there are two basic trains of thought regarding these situations. The professionals are thinking, "Wow, look at how amazing I am. This took a lot of work to produce. I will allow you the privilege of gazing upon it." Meanwhile, the users are thinking, "Hmmm. You wanna restrict my rights? I'll go somewhere else then (or just rip it anyway to spite you)."

You wanna protect your creation? Share it with no one. If no one ever sees what you've made, no one can "take it" (even though you cannot "steal" a digital anything). It is hypocritical how these people approach the Internet. "I want all the benefits of digital distribution with all the consumer restrictions of physical distribution." Sorry! You can't have it both ways!

Copyright needs some serious 21st century repair. I believe in granting credit to the original producer, but I do NOT believe in absolute control over one's creation (ESPECIALLY when placing the creation in a public place).
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Alex Hagen, 19 Mar 2009 @ 11:44am

Re: Re: Re: Re: sad
Rush, is that you?
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Valkor, 19 Mar 2009 @ 11:53am

Re: Re: Re: Re: Re: sad
When a troll trolls a troll, is that a troll squared?
I can't wait to see the intellectual heights that will be reached by this thread.
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ChurchHatesTucker (profile), 19 Mar 2009 @ 12:03pm

Re: The REALLY sad part of all this is...
"...That none this craps deserves monopoly protection as it is all patently un-original."

Hah! That's true enough.

Frak, I should patent "a method for posing a subject looking as if toward a hopeful future." Sure, it's a tired old standby of portrait photography, but I'm confident that I could get it past the USPTO.

Get ready to pay out, Garcia! Ka-Ching!
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Anonymous Coward, 19 Mar 2009 @ 1:27pm

Re: Re: Anonym ass
yes... I am an ass. I can think for myself and not let the media tell me who to vote for because it will make history. This person that you voted into office is going to be responsible for many great, yet terrible events. But I cannot tell anyone anything. Everyone else drank the magic punch and is in love with Obama.
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bowerbird, 19 Mar 2009 @ 7:31pm

that shepard. man he's a lousy plagiarist.
look, he didn't even get the colors right...

-bowerbird
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Chico, 20 Mar 2009 @ 12:01am

Garcia is selling copies of this photo for $1200 and AP is having a great publicity... Just saying...
If it wasn't for Shep, Garcia would be another photographer out of millions.
And shouldn't President Obama sue AP/Garcia for this? It's his face for God sake!
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nasch, 20 Mar 2009 @ 9:35am

Re: The REALLY sad part of all this is...
So what you're saying is they're both pictures of a guy's face. I mean really, you could take any picture of somebody looking more or less towards the camera, and crop/flip/rotate/whatever, and it's going to look like that.
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