One of Shepard Fairey's posters based on a photo by Mannie Garcia.
Garcia shot the 2006 photograph of Barack Obama that Fairey used as the basis for one of his celebrated campaign posters. The AP and Fairey have been engaged in a copyright suit over the use of the image since February. So far Garcia hasn’t been part of the legal process.
Garcia’s motion makes the legal dispute more complicated. Garcia has asked to be included as a defendant—joining the AP in accusing Fairey of copyright infringement. (Anticipating a copyright lawsuit in February, Fairey sued the AP first.) Garcia also wants to be a counter-claim plaintiff—against the AP—since he and the AP cannot agree on who owns the copyright to the original photograph.
Garcia and the AP cannot even agree if Garcia was an AP "employee." Garcia says he was a freelancer who never agreed to assign his copyrights to the AP. “He [Garcia] was never an AP employee, but was the creative author and rightful owner of the photograph,” Garcia's motion says.
The AP disagrees. “The Associated Press is evaluating Mannie Garcia's position, but remains confident in AP's ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo in 2006,” an AP spokesperson said by e-mail.
Garcia did not immediately return a call for comment.
Garcia’s motion says that unless he joins the lawsuit, he will be prejudiced whatever the outcome. If Fairey wins, Garcia will be “denied his rights to litigate his copyright rights,” while if the AP wins, AP “will receive the copyright damages he [Garcia] is entitled to claim.”
Both Garcia and the AP agree that Fairey infringed on the copyright to the 2006 photograph of Barack Obama. Fairey has argued that the use of the picture is protected by the fair use provisions of the copyright law.
Garcia’s motion represents a change from his earlier statements, in which he said he was reluctant to fight Fairey or the AP. In a February 5 interview with PDN, Garcia said he was concerned about copyright, but was not pursuing legal action against Fairey.
“I’m concerned about it, but this is a unique situation,” Garcia said. “This is not just some artist who ripped something off. It’s more unique and more complicated than that. This is about the 44th President of the United States. I am not going to do anything to subvert this presidency.”
He continued, “I’m proud of the image. It’s great that it had the effect that it did. The process? I don’t know. I guess that’s for the lawyers to figure out.”
In the same interview, Garcia said he never signed the AP's freelancer contract because he objected to terms in it.
The case has been grinding through a series of legal maneuvers since February. So far, the AP and Fairey have not resolved which Garcia photograph is at issue. The AP says it is a picture showing just Obama, while Fairey says it is a wider image that includes both Obama and actor George Clooney.
The Garcia motion was filed July 8 in U. S. District Court, Southern District of New York, and was first reported on the blog of attorney Ray Beckerman.
Related stories
Feb. 4, 2009: AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
Feb. 5, 2009: Obama Poster Photographer Doesn’t Want To Fight Shepard Fairey
Feb. 9, 2009: Shepard Fairey Sues AP Over Obama Poster Dispute
March 11, 2009: AP Answers Shepard Fairey Lawsuit, Accuses Artist of Infringement
April 15, 2009: Shepard Fairey, In Latest Legal Defense, Argues AP Copied His Poster
