Tuesday, February 10, 2009

Did I infringe on someone's intellectual property with this photo taken on the streets of Madison?

Am I in Trouble for Taking This Photograph?
I took this photo just off State Street last year right before the election. Now it seems that I may have violated the intellectual property rights of the artist who allegedly infringed on the Associated Press intellectual property rights to a photograph that appears to have been taken by a photographer who never actually signed the rights over to them. Should I be worried?

Obviously this is absurd. It's also only a slight exaggeration of the issues raised by the lawsuit and countersuit between Associated press and artist Shepard Fairey. AP alleges that Fairey infringed on their copyrighted photo of Barack Obama, taken by photographer Mannie Garcia. Fairey countersued, claiming "fair use" rights to the image he used as a starting point for his famous Obama poster.

I have mixed feelings about the case. In general, I think it's not in the public interest to enforce overly rigid definitions of intellectual property. But I also think photographers deserve reasonable protection in the age of digital reproduction. (Case in point: Fairey found the Obama photo on Google Image Search and subsequently wasn't even sure whose photo he had used.)

The lawsuits are a tangled mess and will, I suppose, be settled long before going to trial. Again, I have mixed feelings about all the parties and their stances, except the photographer, Mannie Garcia. AP is an intellectual property hawk that often overreaches (they've even gone after bloggers who quote a few words from an AP story). Shepard Fairey definitely tests the limits of fair use in his art, which is usually based on appropriation, not just in the case of Obama, and he rarely acknowledges his original sources, which I'm not wild about. On the other hand, he's an artist who transformed a competent but fairly pedestrian photo into an iconic image that will live on for years as the image of this time in a way no news photo ever could.

The only person who seems to have an admirable stance in all this is Mannie Garcia himself (ironically, he seems to own the photo rights rather than AP), who doesn't seem to begrudge Fairey the use of the image and acknowledges its special historical significance.
“ I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”

He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”
Would have been nice if AP had showed as much historical awareness and common sense as Mannie Garcia. And if Fairey had been graceful enough to at least acknowledge the source of his image.

1 comment:

Ann Marie Simard said...

Complex issues. And of course your photo there is both a metaphor and a question also very beautiful. You own it now. So, AP not one to be messed with. What is truly interesting in this all is that Mannie Garcia owns the rights, well there are different types of contracts with these agencies, depending on reputation. Then there are MR issues, oh well I guess you know all of them. Indeed Fairey should have quoted the source. Not sure how much I should criticize AP in public, maybe just a mention that they can be quite hawkish and your photo there is excellent artistic appropriation in several ways. It's good someone thinks and posts these thought provoking images and words. Indeed once again no easy answers, guess poetic justice rendered by your excellent judgement here.