By Daryl Lang

A judge has granted photographer Mannie Garcia’s motion to join the copyright infringement lawsuit between poster artist Shepard Fairey and the Associated Press.

Garcia shot the 2006 photograph of Barack Obama that Fairey used as the reference for his famous campaign posters. The AP and Garcia are accusing Fairey of copyright infringement, and Garcia is accusing the AP of wrongfully claiming the copyright to the photograph he shot.

Garcia filed a motion to intervene on July 8. Attorneys for the AP and Fairey said they did not oppose it. Judge Alvin K. Hellerstein of the U.S. District Court, Southern District of New York, approved the motion in a handwritten note dated July 22.

The lawsuit, Shepard Fairey et al. v. The Associated Press, now concerns two main questions. Was Fairey’s use of the photograph fair use, and thus protected by law, or was it a copyright infringement? And who owns the copyright to the photograph, Garcia or the AP?

Garcia says he was a freelancer when he shot the photograph for the AP, and thus the work-for-hire doctrine does not apply, though the AP says Garcia was an employee and so the AP owns the photograph.

Both Garcia and the AP have registered the photograph with the U.S. copyright office, and Fairey has registered his posters as well.

There are other factual disagreements between the parties that remain unresolved, including which of Garcia’s photographs Fairey used. The parties are now performing factual discovery, and the judge has scheduled the next court conference for November 20.

For more background, please see our July 13 story: Photographer Wants In On Fairey Lawsuit.