The Obama “Hope” Poster Case — Mannie Garcia Weighs In

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Category: Intellectual Property Law
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(This is the 7th in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

[Update (7/23): The court granted Garcia’s motion to intervene, which was unopposed. AP’s and Fairey’s answers are due Aug. 14, fact discovery will continue until October, and the next status conference in the case will be Nov. 20, meaning we will most likely not get a summary judgement hearing until 2010.]

With the crunch at the end of the semester, my series on the Obama Hope poster case petered out unexpectedly. Among the events I noted silently to myself in the interim were Fairey’s answer to AP’s counterclaims and a trio of NPR interviews on the case with Shepard Fairey, Mannie Garcia, and law professor Greg Lastowka.

There’s nothing like a fresh filing to get one out of the doldrums, however. On Thursday, the other shoe in this case dropped when Mannie Garcia, the photographer who shot the Obama photograph at issue, filed a motion to intervene in the case as a defendant. (Quick, Civ Pro students: what rule?) Garcia’s proposed answer, counterclaims, and cross-claims assert that the photograph is copyrightable, that Garcia, not AP,  is the copyright owner in the photograph, and that Fairey infringed his copyright. I’ll focus on two interesting aspects of the filing after the jump.

To get a couple of procedural issues out of the way, Garcia’s motion will very likely be granted. He claims ownership of the photo, and this litigation will, among other things, determine AP’s ownership rights in the photo and whether Fairey infringed it. Not only is he a mandatory intervenor under Fed.R.Civ.P. 24(a), but he’s likely a necessary party under Rule 19(a)(1)(B)(i). Also, he’s fulfilled the requirements of 17 U.S.C. § 411 by registering the copyright in his photo (Proposed Ans. ¶ 53). Garcia must have paid the $685 expedite fee for his registration because it was approved in at most 2 months, remarkable speed given the Copyright Office’s current backlog. However, Garcia mistakenly asserts that he is entitled to statutory damages and attorneys fees if he wins on his infringement claim against Fairey. (Proposed Ans. ¶ 93.) Unfortunately not, because the infringement “commenced after first publication of the work and before the effective date of its registration,” unless he can somehow argue that AP’s group registration should suffice, even though it was apparently for a compilation.

Now for the two substantive points I want to focus on. First, as I’ve discussed in a prior post, the ownership issue between Garcia and AP is interesting in its own right. To sum up that earlier post, it seems that Garcia has a pretty good case that he was not an AP employee at the time he took the photo. If not, then the only way that AP could own the copyright is if Garcia assigned it to them in writing. Alternatively, the AP could try to argue that Garcia’s photos were “specially ordered or commissioned for use as a contribution to a collective work,” the “collective work” being the batch of photos that the AP registered the Obama photo as part of. (See Peter Hirtle’s comment here.) But that would still require a signed, written agreement “that the work shall be considered a work made for hire.” Garcia claims in his pleading that he was not an employee and “never agreed to assign his copyright rights in his photographs to the AP.” (Proposed Ans. ¶ 56.) Unless AP can produce some sort of writing, I think they may be in trouble.

Second, Garcia has shed a little further light on what’s copyrightable about his photo. In his counter- and cross-claims, Garcia expressly adopts the AP’s statement of the creative elements of his photograph: (1) his selection of that specific moment to take the photo; (2) his choice of lens and lighting; and (3) his composition of the photograph. (Proposed Ans. ¶ 58, quoting AP Ans. ¶ 58.) Garcia himself breaks this down into a few more elements: “angle, focus, pose, lighting, depth of field and his selection of the proper facial expression, manner and demeanor of his subject.” (Id. ¶ 82.) In his NPR interview, Garcia describes the moment (starting at 6:25):

I’m on my knees, I’m down low, and I’m just trying to make a nice, clean headshot. And I’m waiting, I’m looking at the eyes, I’m sure there’s focus, and I want the background to be a little bit soft, I wanted a shallow depth of field, I’m looking, I’m waiting, I’m waiting for him to turn his head a little bit, I’m just patiently making a few pictures here and there, and I’m just looking for a moment when I think is right and I’m taking some images as I’m going along. And then it happened: Boom, I was there, I was ready.

There’s enough creative choices here, it seems to me, to make the photograph copyrightable. Garcia chose where to place himself—the “angle”although there were likely constraints on that. He chose which lens to use, shutter speed, aperture, and possibly whether or not to use a flash—all of which affected the “lighting” and framing of the shot. (Some commentators have correctly pointed out that the room lighting was not under Garcia’s control, but the amount of light he let into the camera certainly was.) He framed the shot vertically around Obama’s head and shoulders, and gave it a shallow depth of field to mute the background (which was, in part, an American flag—which was possibly intentional on Garcia’s part).

There’s a couple of other significant elements of choice. First, Garcia chose the moment to take the photograph. His interview with Terry Gross indicates that he was waiting for just such a moment to occur when he snapped the shot. This involved a little more discretion than taking as many photos as possible. As I’ve learned to my chagrin, every taken photo is a missed opportunity to take the shot a split-second later. There’s therefore some amount of judgement involved in deciding exactly when to take the photo. (Or “make” the photograph, as Garcia puts it.)

Second, Garcia made another selection later that day. In reviewing the 275 photos Garcia took at the press briefing, he chose 16 to send to the AP. I.e., he selected the photo above and 15 others as being the best of the lot. (Aside: as Garcia explains in the NPR interview, this is why he didn’t recognize his own photo: he takes thousands of pictures a year.) Prior caselaw in the Second Circuit suggests that these selections alone may be enough for at least a thin copyright, see, e.g., Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991); Key Publications, Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.2d 509 (2d Cir. 1991), and Garcia’s other choices add to the creativity involved. Among the judgement that went into his selection was one of whether to include Obama at all, since, as Garcia notes in his interview (4:56), it was 2006 and the assignment was actually to cover George Clooney, not Barack Obama.

The complaint played down the significance of Garcia’s choices, portraying him as little more than a picture-taking machine. According to complaint, Fairey took Garcia’s “literal depiction” that merely “document[ed] the events that took place at the National Press Club that day in April 2006” and “transformed” it into a “stunning” image the purpose of which was ” to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader.” (Compl. ¶ 18.) None of those qualities, in other words, are present in the original photo. But this seems clearly wrong, and I don’t think the plaintiffs will win in their attempt to portray the Garcia photograph as minimally copyrightable. As a professional photographer, Garcia no doubt understood the meaning of his choices. Being down below a subject makes him or her seem more significant and regal; the fuzzy flag background added a suggestion of patriotism; Obama’s slightly upward gaze and three-quarters profile reflected thoughtfulness rather than inattention. With the exception of the effects added by the poster-like coloration in the Fairey poster, the same qualities are present in both images.

There’s obviously also some amount of serendipity in Garcia’s photo, as captured by the conclusion of the quotation above: “Boom, I was there, I was ready.” “I was there, I was ready,” expresses the fact that, like a poker player, Garcia had deliberately put himself in a position to capture a good shot (in his judgement) if one occurred. But the “boom” expresses the fact that events were not fully under his control, as is true of most photography. This has troubled photograph copyrights since the beginning; how much of the photograph is due to the photographer, and how much to the subject or chance events? Abraham Zapruder set up a primitive movie camera to film a presidential motorcade, had trouble tracking the shot, and did not even realize until later that he had captured Kennedy’s assassination. Ansel Adams was driving down a desert road and happened to see a great shot out the window. He couldn’t find his exposure meter in time, and guessed. He tried to take a second exposure, but within a few seconds the sun had moved on and the lighting changed. The value of Zapruder’s film seems almost entirely due to the event, and very little to do with his choices. It seems to lie at the periphery of copyrightable materials, if it is copyrightable at all. But Adams’ famous “Moonrise” photograph was also significantly affected by chance, yet it is probably within the core of copyrightable materials. Where is Garcia’s photograph? It seems to me that it is closer to Adams than Zapruder.

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7 Responses to “The Obama “Hope” Poster Case — Mannie Garcia Weighs In”

  1. Ethan Ackerman Says:

    “unless he can somehow argue that AP’s group registration should suffice, even though it was apparently for a compilation.”

    Heh. Registration (and ss. 411) somehow works its way into every case. I wonder if it’s some copyright equivalent of Godwin’s law that every copyright case will eventually devolve to Patry v. Nimmer – is registration a jurisdictional prerequisite?

    As this is in the Second Circuit, Patry’s view holds sway, most recently in Reed Elsevier v. Muchnick — until/unless reversed by SCOTUS, which has granted cert. on the issue.

    ( http://www.exclusiverights.net/2009/03/supreme-court-grants-cert-in-reed-elsevier-et-al-v-muchnick-et-al/ )

  2. I suspect that you are right that the Court will find some copyrightable content in the photograph. Nevertheless, it seems to me that we are pretty far away from the standard the Supreme Court set in Burrow-Giles Lithographic v. Sarony.

    In that case, the Court found the photograph to be an original work of art because the photographer had “his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.” Mannie Garcia did none of these things. He didn’t pose Obama, select a costume, arrange the visual accessories, etc. If anything, Obama himself contributed the elements that the court identified, and so at the very least this should be a joint work of copyright (if there is any copyright at all).

    Garcia did elect to snap the photograph at a particular moment, but in doing so, he captured Obama in a pose that Peter Jaszi has noted is a standard convention of photography.

    In short, this case could be an effective mechanism for drawing some boundaries around the copyright status of photographs and limit copyright in photographs to those cases when the photographer clearly adds originality. I doubt, however, if it will happen.

  3. Thanks Peter. I agree photograph copyrights are a puzzle, and that’s one of the reasons I am so interested in this case. And I would agree Garcia’s choices are somewhat different than Sarony’s, although that doesn’t tell us much because the Supreme Court in Burrow-Giles didn’t identify what the minimum was, only that Sarony satisfied it. Re: pose, I would disagree somewhat from your position; while it’s true that Garcia didn’t tell Obama how to pose, he seems to have been looking for and have selected a particular pose (twice) as a good one. The fact that similar poses are well known to convey a certain impression doesn’t really seem to reduce the creativity in my mind, any more than yet another iteration of conflict-resolution format does in literature.

    I think the outcome for photograph copyrights has to be that they are somewhat thin–perhaps not as thin as compilations, but I don’t think they can get the full panoply of protection against similar expression that other works do. If and when I get to the substantial similarity issue, I think this will be the biggest hurdle for AP/Garcia in this case. The real puzzle for photograph copyrights, to my mind, is the intentionally very similar work–a second photograph that attempts to exactly duplicate the conditions of the first. But that’s not this case.

    I don’t think you can say there’s a joint work here, certainly not under Second Circuit precedents like Thomson v. Larson. Not only was there no intent on either party’s part to jointly author a work, but also, under the way I read Thomson, we just don’t typically ascribe any authorship to photographic subjects even when they do intentionally contribute something to the photograph. And that seems reasonable to me.

  4. Mark Andresen Says:

    As a professional illustrator, I’ve followed this story the best I can because it impacts all illustrators who simply MUST use photo sources for portrait resemblance. Having six head shots on screen while one draws still doesn’t mean this is intentional stealing 1/6th of each image or 1/16th or 1/116th. It’s called artistic license. Except for face-to-face portraiture, then, an artist HAS TO rely on pictures in the public domain.

    The photo is used as a reference not a direct swipe. Every illustrator must select and enhance features, otherwise there is no likeness. If the artist took Garcia’s photo and then ran it through Photoshop to posterize it, I would certainly think he intruded on the photographer’s work.

    I did a test: by superimposing the art on top of the photo to see if all points matched up, it’s evident that the artist did not use the photo as his image template. There are alterations that were hand and eye judgements.

    This whole case is unfair to artists making a living who have to do high-profile portraits.

    Personally, I think both AP and Garcia are jerks for going after a guy who did not directly profit from the image but donated it to The National Endowment for The Arts. What has Garcia done that’s as iconic and historic? You’d think AP would not be so small-minded and just take more pictures.

  5. Thanks Mark for your comment. I don’t think Fairey disputes that he directly profited from the image; the poster is available for sale on his website. But that doesn’t end the fair use inquiry; fair use can cover material produced for profit.

    It’s true that Fairey’s poster achieved wider fame than Garcia’s photograph. But copyright law rightly in my view doesn’t allow courts to balance the relative merits of works in deciding whether a borrower committed actionable infringement. In other words, it doesn’t let Steven Spielberg (let’s say) rip off some unknown screenwriter just because he’s Steven Spielberg. I think one of the more useful functions of copyright law is protecting smaller artists against larger companies in this way.

  6. Mark Andresen Says:

    Thank you Bruce for clarifying your position. I agree that you are probably closer to the legal bull’s eye about this Fairey vs. Garcia issue than I am. I shouldn’t show disrespect for AP or Mr. Garcia as I did. (Artists get emotional about these things, what can I say?)

    But a larger issue looms: copyright law is going through some very fundamental changes to so-called intellectual property, as we speak.

    Anyone familiar with The Orphan Works Act recently passed by the House knows that large corporations like Getty and Corbis are about to create a joint monopoly “image bank” and essentially rule the world’s images. Fairey is merely a speck on this iceberg.

    from IllustratorsPartnership.org:

    The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive. http://www.copyright.gov/orphan/orphan-report-full.pdf

    The proposal would not re-impose formalities, but would penalize artists who didn’t re-impose formalities on themselves. The strategy is to “limit remedies” for infringement in any case where an illustration or photograph was published without “relevant information” on the picture itself – or where relevant information has been removed:

    “For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’s recommendation would make such markings mandatory…Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner.” (p. 9, emphasis added)

    The report does not define a “reasonable search,” but says (p. 98): “a very general standard…will have to be applied by users, copyright owners and ultimately the courts on a case-by-case basis…” There will be no statutory damages, court costs or attorneys’ fees available for artists whose work has been infringed:

    “Our recommendation [limits] the possible monetary relief in these cases to only ‘reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced.” (p. 12)

    By limiting remedies for infringement, the Copyright Office acknowledges that individual authors generally lack the resources to police unauthorized usage:

    “While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.” ( p. 117)

    The Report expresses “sympathy” for this fact of life, but states that “[t]his problem . . . has existed for some time and goes beyond the orphan works situation, extending to all types of infringement of the works of individual authors . . . It is not, however, within the province of this study on orphan works.”(p.114, emphasis added)

    By suggesting that artists may have to go to court to resolve even minor publication disputes, the Orphan Works Report raises a jurisdictional question that it doesn’t answer. US Copyright law is federal law and filing a federal lawsuit is prohibitively expensive. There are only 11 Federal Districts in the US and approximately 100 US District Courts. We’ve asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Court to be paid minimum fees for unauthorized usage. Their answer was they weren’t sure, but are considering establishing a copyright small claims court. However, this still doesn’t resolve the jurisdictional issue, unless the government establishes a Federal small claims court in every city and town in the US to resolve an increased number of copyright disputes. This seems most unlikely.

    Another problem with relying on small claims courts is that awards are limited to US $2,000, which would cap the “reasonable royalty” allowable for any, usage, regardless of commercial value and number of works used. Small claims judgments are also unenforceable. Also since an infringer will need only prove that he could not identify or find the artist of an unmarked image, the judge may be forced to uphold the majority of infringements, regardless of the effect it will have on the copyright holder.

    Many trade organizations have united to oppose this wholesale infringement.
    For further information please visit http://www.illustratorspartnership.org/
    for an in-depth perspective on The Orphan Works Act and the future of this issue.

  7. Mark Andresen Says:

    pardon my tangent…

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