Who owns the Obama photo? Poster fair-use fight takes new turn

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Who owns the Obama photo? Poster fair-use fight takes new turn

Tue Jul 14, 2009 @ 11:47AM PST

By Eriq Gardner

Obamaposter Earlier this year, street artist Shepard Fairey and The Associated Press went to war over Fairey's iconic poster of Barack Obama.

The AP claimed that Fairey had based his poster on one of its photos. Fairey asked a court to declare his work "fair use." The AP countered with a much discussed copyright infringement lawsuit
Now there's been a particularly interesting development in the case.

Mannie Garcia, who took the AP photo, has filed a motion to intervene in the case, saying he never agreed to assign his copyright rights in his photographs to the AP. Garcia says he's an independent, freelance photographer who was not an AP employee, not eligible to join the union, and received no health, vacation, unemployment or other benefits from the AP.

In other words, is it possible that the AP has asserted a copyright claim on something over which it holds no copyright?

This development potentially moves the case into an entirely new direction. 

Freelancer rights to works in electronic databases was the subject of the 2001 Supreme Court case, New York Times v. Tasini, where the high court ruled that publishers must get agreements with freelancers to continue using copyrighted material. What kind of licensing agreement did Garcia have with the AP?

The AP might also argue that although Garcia wasn't technically an employee, the photo was taken as a "work for hire." The relationship between studios/publishers and freelance authors/creators has been a ripe subject of copyright law in recent years.

Ultimately, the Fairey case will still turn on a court's interpretation of "fair use." But we're less certain about who Fairey is fighting at this moment.

It's also worth pointing out that Garcia has hired a pretty big law firm, Boies, Schiller & Flexner, to help him in this matter.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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