Copyright: Garcia versus Fairey

If you create any sort of content especially if it’s something you can digitize, you probaby want to pay attention to this case of Associated Press stringer Mannie Garcia vs. Shepard Fairey.

Artist Shepard Fairey who colorized a picture which photographer Manny took of President Obama has sued Associated Press. Exactly why I’m not sure. It’s baffling for sure.

It’s becoming a lot easier if you’re the lazy sort. You can almost pass off any work as your own if you modify an image.

Exactly how much do you need to modify so that you have created something original? That part remains unclear.

I was invited to be in a Facebook group called PACT, Photographers Against Creative Theft, recently.

The group’s belief?
The case of the AP and photographer Mannie Garcia versus Shepard Fairey, an artist who appropriated an AP photo for the basis of a popular Obama art piece, is the latest high profile example of a common Internet phenomenon: creative theft. It’s not that we don’t like Mr. Fairey (we do), but it’s time to give credit where credit is due.

It’s a worthwhile group to belong to for sure. Too many scumbags out there. You have to watch out for each other and other like-minded artists.

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11 thoughts on “Copyright: Garcia versus Fairey”

  1. ArtLawProf, thanks for your contribution. I believe we are in agreement here about Fairey.

    This is not the 1st time he has “used” other photographs in his so-called art. What he didn’t plan on when he “used” Garcia’s photo was how the Obama campaign would embrace the derivative work and how successful the poster became.

    I’m sure once he saw the financial gain, he decided he better try and legally “steal” it, hence the legal suite.

  2. Great discussion, everyone! Sorry in advance for such a long post, but I wanted to address several issues brought up in the post and subsequent comments.

    As to “how much” needs to be changed to make something “original” really doesn’t matter. There’s a guideline I’ve heard (maybe 30% or 70%, not really sure), but that is completely inconsequential. So long as the courts determine that you have taken the “heart” of the original work of art, you are infringing. There are a few nuances to that, but that’s the basic explanation.

    Copyright (as well as trademark) violations must be enforced by the author of the work. To do so, lawsuit must be filed within 3 years of when the author knew or “should have known” about the infringement, otherwise they lose their right to sue that individual.

    For corporations such as AP, copyright duration lasts either 95 years from first publication or 120 years from creation whichever is shorter. The duration of life + 70 only pertains to works authored by individuals.

    There is no “mystery” about the extension of the duration of copyright protection. The U.S. signed the Berne Convention in 1988. In the European Union at the time, copyright protection lasted longer than in the United States. Disney, George Gershwin, Sonny Bono, and others began lobbying heavily for the extension of U.S. copyright protection. Congress passed the protection extension in 1998.

    Although freelance photographers frequently sign so-called “work-for-hire” contracts, they actually aren’t work-for-hire contracts. I’ll explain that some other time. Those contracts are actually “assignment of rights” contracts which are a complete transfer of rights.

    Shepard Fairey isn’t trying to sue the AP. In any lawsuit, the party being served must file a response with the court. The “lawsuit” filed by Fairey was simply his response. In it (and on his website:, he argues that several other artists have used AP photos before and AP photographers take pictures of artists’ work and no lawsuits have been filed as a result so why should they be able to sue him. He says that his response argues for “artistic freedom and basic rights of free expression.” Apparently he forgot that photographers have rights, too. He appears to distinguish between artists and photographers, stating that artists shouldn’t need to always get the photographer’s permission to use his/her photograph. In other words, if you’re an artist, you should be able to disregard the copyright rights of a photographer just because you’re an artist. Talk about a sanctimonious, self-absorbed…well, you get my drift.

    I am concerned about a recurring comment on this discussion string, and that is the distinguishing between “for profit” and “personal use” of an infringed photograph. Under copyright law, there is no difference. Copying of copyrighted material for whatever reason is still infringement. Whether there’s a lawsuit filed is usually determined by the copyright holder’s desire to sue, and that is usually determined by how much money can be received for damages. This is reinforced by that fact that, if you file for copyright protection with the U.S. Copyright Office and that work of art is infringed, you can claim the minimum $100,000 “statutory damages” regardless of whether you can show that the infringer made any profits from the infringement.

    I think I was able to address all the issues discussed. Again, sorry for the length of this post, but I hope it was helpful and informative.

  3. Eggman!
    Thanks again for sharing and, more importantly, including the URL to your source. I need to educate myself more on this so I can share this with my students.

  4. Art,
    I don’t know too much about the background on Manny Garcia.

    Specifically I don’t know if he is a staffer. AP doesn’t have too many staffers anymore. Most of their pictures are by freelancers.

    I think AP makes their freelancers sign a “work for hire” contract which states the AP owns everything they shoot.

    I have to say I don’t know the answers to the questions you pose. Certainly worth finding out more. Thanks

  5. Here’s a “what if” for you Pixel Pete: What if artist Fairey used photographer Garcia’s image as inspiration for a digital piece he created in its entirety? Let’s assume photographer Garica is employed by AP, using their equiptment and he was on the job when he took the photo. AP claims all their copyright protection. Can artist Fairey legally use the image in question for inspiration for the creation of a work he intends to copy, sell and profit from (his creation not the original image)? As a follow up, does copyright ever expire? Using the facts above, is there a time limit to AP’s copyright? Will the image ever pass in the Public Domain due to “expiration” of copyright?

  6. Sorry, I should have added something about ‘For Profit’ and ‘Fair Use.’ My bad, and you’re right. Had he made the image to hang in his living room, he’d never be caught, and in any case, monetary damages would probably be impossible to prove. Selling copies, or hanging it in a restaurant or commercial establishment, however — verboten.

    I consider it a complement when I see one of my photos show up on someones website, UNLESS the page is full of ads and/or there is no credit. (or they take it) The res is so low it’s not commercially useful and the name recognition never hurts. (Unless, of course it shows up on some ‘less than reputable’ site.)

    If I see something of mine reprinted on a non-commercial website _without_ credit, I’ll drop the poster a note requesting a credit line and a copyright notice.

    If I see it on a commercial site I send them a bill with 10 days to pay, or pull it down. Occasionally they actually pay!

    In fact, if you DO see a blatant violation of your copyright or trademark (two quite different animals) and it can be demonstrated that you knew about it and did nothing, you may lose some of all of your rights under the law.


  7. Eggman,
    If it’s clearly derivative work, then Fairey doesn’t own the rights to create it. He didn’t take the original picture, right? If he did, this wouldn’t be an issue at all.

    In the case where I make some coasters out of a postcards, if I use them for myself without selling them for commercial gain, who is going to know and how does that make it worthwhile for the creator of the postcards to sue me for infringement?

    Fairey is making money of this, so he should have come clean in the very beginning.

    With digital technology, just about anyone with some photoshop skills can create “art” without ever picking up a pen, paintbrush or a camera.

    Thanks for your insight Eggman.

  8. It’s clearly a derivative work.

    The Copyright laws can be very strange and counterintuitive.

    If you find some pretty post cards and decide to ‘laminate’ or otherwise make them into coasters, wall tiles, collages, or whatever, you are creating a derivative work, even though you bought and paid for the postcard.

    See Also:



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