Tue Jul 14, 2009 @ 11:47AM PST
By Eriq Gardner
Earlier this year, street artist Shepard Fairey and The Associated Press went to war over Fairey's iconic poster of Barack Obama.
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.
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.