Mannie Garcia, an AP photographer, took several pictures of a National Press Club discussion on the crisis in Darfur, in April 2006, of George Clooney and Senator Barack Obama. An artist by the name of Shepard Fairey took one of Garcia’s photos he found on the internet from that set, cropped it around Obama’s face and changed the real photograph into an artistic expression. When laid side by side the only similarity to the works is Obama’s look and head position, other than that the picture and poster are completely different.
During President Obama’s campaign Fairey’s poster with the word hope on the bottom became a national icon for the canidate. It is at this point that everyone clashed. The AP took a lawsuit our against Fairey for infringement, but before they could file the lawsuit Fairey’s lawyers filed a pre-emptive lawsuit claiming fair use. So the question remains, is the artist’s conception and ultimate transformation of the photograph, just or is it simply copyright infringement.
A law professor from Rutger’s School of Law named Greg Lawstoka, discusses two cases in which the supreme court has settled is first harper vs. Row which ended with the supreme court deciding that it was not fair use and Campbell vs. Acuff Rows wnated to use the song pretty woman and they did and it settled out of he supreme court as fair use.
According to Lawstoka some significant factors for Fairey is the amount of a picture or work taken if there is less then a half of the original work there is a good chance the court will decide with Campbell vs. Acuff Row. Also the intention of each use. Garcia used it as a factual news photo, while Fairey used a tiny crop and transformed the news item into a bold statement whch transforms the picture from a factual item to an emotional idea so it is more in favor of fair use.
Lawstoka concludes that the case could go either way and it all comes down to the little details and what case the Supreme Court will side with.
From my own journalistic prosective I will have to side with fair use after listening to Lawstoka, Fairey, and Garcia’s arguments. According to Lawstoka a key factor is the amount of the work taken, originally Garcia admitted in his interview on Fresh Air that he went to the discussion mainly to photograph George Clooney and it just so happed that two senators one of which being Sen. Obama. The full size image shows Sen. Obama in the right corner with Clooney sitting to his left in the shot. Farey cropped the photo to a portarait shot of Obama and from there faded out the background and changed it into a piece of art. I also side with the idea that Garcia took the photo for factual purposes while Fairey used a small section of the factual work to transform it into a symbol of hope.
