Today's Fresh Air with Terry Gross on NPR was a fantastic overview of the Shepard Fairey/AP/Mannie Garcia legal battle. Terry Gross played interviews of Shepard Fairey from January and from yesterday, as well as recent interviews with Mannie Garcia and Law Professor Greg Lastowka, an expert on fair use law. If you missed it, I have provided links to the interviews below.
From the interview with Mannie Garcia...
Terry Gross: Didn't you know that it was your photo?
Mannie Garcia: No, I didn't recognize it.
Terry Gross: What was your reaction when you found out it was yours?
Mannie Garcia: ...disappointed , the fact that someone was able to go on the internet and take something that doesn't belong to them and use it. I think that part of this whole story is crucial for people to understand, that simply because it is 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.
From the interview with Shepard Fairey...
Terry Gross: On what grounds are you claiming fair use?
Shepard Fairey: I am claiming fair use on the grounds that this is an image that has been transformed graphically and maybe even more significantly, transformed in it's intent.The original image was intended to just document a Darfur panel in 2006 prior to Obama even announcing his candidacy, and the new image is designed to show Obama as a leader and a presidential candidate who would be pushing for progress change and a symbol of hope. These are completely different uses, and I think that it's fair use based on that intent, as well as the transformation graphically that really idealizes it in a way that is not there in the original.
...and then back to the Mannie Garcia interview...
Terry Gross: One of Shepard Fairey's points is that his use of your image transformed your image, and you said you didn't even recognize that it was your photo that Shepard Fairey used, which I suppose is an argument that he succeeded in transforming your image. So, if he takes freely your image and transforms it to the point where you don't even recognize it, is that more justified to you, do you think? Because you're saying, just because it's free and on the Internet, doesn't mean it's for the taking. So, if it's transformed, does that change things?
Mannie Garcia: Terry, you have to understand. As a freelance photographer, on that one particular day alone, I must have made a thousand images, and that was a relatively light day, you know, April the 27th. In the normal course of business, we make a lot of photographs in a year. I don't remember every single photograph that I make.
And for example, today I was at the White House working. I may have made 100 images in, you know, less than 20 minutes. I may have filed of that, I may have filed maybe five, and I'll go to the next assignment probably three or four hours after that and I'll do it again, and in the course of the day, I can do that maybe 1,200 images. That doesn't meant that the five that I filed from the first assignment or the 15 over the three assignments in one day that the all the others don't mean anything and that the 15 that I made, just because they're on the Internet, have no value. Quite the contrary. They have a lot of value.
Prior to today's show, I was more or less ambivalent on this story, but after listening to all three interviews I am tending to lean to Garcia's favor. Hearing his descriptions of spending hours and hours on assignment taking thousands of images per week, and getting maybe a dozen shots worth filing out of those thousands. The sweat equity that goes into those shots, and then the frustration in his voice that comes from the general assumption that because his work is on the internet, it is free for the taking. By comparison, Fairey's argument is absurd in claiming that he can take it simply because he intends to change it. Fairey just seems to come off as rather flippant at times.
Listen to the interviews.... they are fascinating.
Complete interview of Mannie Garcia on Fresh Air
Complete interview of Shepard Fairey on Fresh Air