I hope Fairey wins this one. To make an Obama poster, an artist has to refer to some image of Obama, and Fairey chose a perfectly generic photograph. How else are you supposed to do an artwork about a famous person? Garcia's image was mainly the raw material Obama provided by having a face. I suppose Fairey could have looked at a couple images and made a freehand drawing or morphed a series of photographs, but he still would have needed to appropriate someone's photography.
Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.Well, if this were a Civil Procedure exam, that would be a good joinder problem.
“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”No, it's really not unique, other than the high profile of the artwork and the consequential strong whiff of money. I hope Fairey uses the power he has acquired to establish the rights of smaller artists to use news photographs to make artworks about celebrities.
He added, “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.”I ♥ Garcia. But let me say that his pride in the new and brilliantly expanded life of his photograph is something that belongs in the law, something that should affect the fair use doctrine. What if Garcia had been asked at the outset: Would you accept the use of your photograph in this manner, with no money going to you, or would you prefer that the artist appropriated someone else's generic photo of Obama's face? Because it's obvious that Garcia would say yes [— please use my photograph —], I would like to see the court hold it to be fair use.