July 13, 2009 2:42 PM

Boies Schiller in for Shooter as "Hope" Poster Case Takes New Twist

Posted by Ed Shanahan

Update, July 13, 2009, 3:40 p.m.: A statement provided by an AP spokesman has been added to this post.

A new party has entered the high-stakes copyright skirmish over a photograph that served as the basis for the most ubiquitous image of the 2008 presidential campaign: The man who took that photograph.

On Thursday, freelance photographer Mannie Garcia, represented by Boies, Schiller & Flexner partner George Carpinello, filed a memorandum of law in federal district court in Manhattan seeking to intervene in the dispute that so far has pitted The Associated Press against artist Shepard Fairey. (Download Garcia memorandum of law.)

Garcia says that because he was never an AP staffer and "never agreed to assign his copyright rights in the photographs" that he shot for the wire service, that he is the rightful owner of those copyrights.

Neither Carpinello, Fairey lawyer Anthony Falzone, or Kirkland & Ellis partner Dale Cendali, who is representing The AP in the matter, immediately returned calls seeking comment.

On Monday afternoon, AP spokesman Paul Colford issued the following statement:

"The Associated Press is evaluating Mannie Garcia's position, but remains confident in AP's ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo in 2006.

"At the same time, The AP notes that Mr. Garcia shares AP's position that the photo used by Mr. Fairey is protected by copyright. Like AP, Mr. Garcia also disputes Shepard Fairey's assertion of the Fair Use Doctrine and claims infringement of copyright."

(When Cendali did call back late Monday afternoon, she declined to comment beyond Colford's statement.) 

The legal wrangling between The AP and Fairey began in February, when the news organization--responding to sleuthing undertaken by photography bloggers--contacted Fairey with a demand for credit and compensation after determining that his so-called Obama Hope poster closely resembled Garcia's photo. The AP claimed it owns the copyright on the photo.

Fairey, who has acknowledged using Garcia's photo as his inspiration, responded by heading to federal court in search of a declaratory judgment against any potential infringement claim brought by The AP. He maintains that his adaptation of the Garcia photo qualifies as a fair use.

The AP fired back in March with a countersuit in which it accused the artist of "blatant copying." According to a May court filing, the two sides have discussed settling the matter since then; they agreed at that point that "further discussions are not likely to be productive." A status conference is set for September 11.

In his filing, Garcia argues that he should be allowed to intervene in the case because his "interests are not adequately represented by either party since neither has recognized Mr. Garcia's superior property and copyright interests in the photograph at issue."

At bottom, those interests are financial: Fairey, Garcia's filing states, has "profited from the sales of Mr. Garcia's copyright photographic image," while "defendant AP seeks to reap some of the profit by claiming that it--and not Mr. Garcia, is the rightful owner of the copyright in the photograph."

That photograph, according to Garcia, was one of 275 that he took at the National Press Club in Washington, D.C., on April 27, 2006; Garcia selected 16 of those images to send along to The AP for its use.

In describing the unique qualities of the photo--which shows Obama head on, his face turned slightly to the left, his chin raised, and his eyes gazing into the distance--Garcia quotes from The AP's own court filing: that the shot was "made distinctive by Mr. Garcia's creative and artistic input, including (1) his deliberate selection of a specific moment in time to capture President Obama's expression; (2) his choice in using a particular type of lens and light for optimal impact; and (3) his careful and unique composition of the photograph."

Garcia continues by noting that the photo was "ultimately used by [Fairey] in the posters that became known as 'Obama Progress' and 'Obama Hope,' which have been sold by [Fairey] since early 2008."

To bolster his copyright claim, Garcia cites a federal certificate of registration that he received for the image, effective March 17, 2009.

Garcia's decision to get involved in the court case reflects something of a change of heart on his part. In February, he told The New York Times:

"I don't condone people taking things, just because they can, off the Internet. But in this case I think it’s a very unique situation," he told the Times then, adding: "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."

Fairey, meanwhile, was recently sentenced to two years' probation in Boston after pleading guilty to a vandalism charge there in connection with his graffiti art.

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