(This is the second in a series of posts on Fairey v. Associated Press, a copyright infringement case filed in New York on Monday involving the Obama “Hope” poster at right. See the first post.)

There’s one big mystery that AP needs to clear up right away in this case: who owns the copyright in the photograph at left, taken by Mannie Garcia at the National Press Club on April 27, 2006? If the AP doesn’t own any portion of the copyright, but is merely a nonexclusive licensee, then it can’t sue for infringement. Intriguingly, Garcia himself says that he believes he owns the copyright, not AP:

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

So what are the odds that the AP doesn’t own the copyright in the photo at issue? And if it doesn’t, what does that do to Fairey’s suit for a declaratory judgement?

In the last several weeks, it’s been revealed that artist Shepard Fairey, who created the iconic “Hope” poster for the Obama campaign on the right, based his poster on a photo taken by AP temporary photographer Manny Garcia, at left. Last week, AP sent a letter to Fairey, requesting “credit and compensation.” (AP) In response, Fairey, represented by the Stanford Fair Use Project and Mark Lemley‘s new law firm, filed suit for declaratory relief in the Southern District of New York. (Complaint)

This suit could raise a number of fascinating copyright issues, some of which I’ve already noted in dispersed comments on other blogs. I’m going to do a series of posts, addressing the following questions:

• Why did Fairey file in the Southern District of New York?
• Does AP actually own the copyright in the Garcia photo?
• Is Fairey’s suit doomed to fail before it even gets off the ground?
• What’s the “original” photo?
• What does the complaint say about the poster creation process?
• What if anything is copyrightable about the photo? Does the poster infringe on that?
• Is the poster subject to a fair use defense?