Law Professor Weighs In On 'Hope' Squabble

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Shepard Fairey: Inspiration Or Infringement?

TERRY GROSS, host:

This is Fresh Air. I'm Terry Gross. Remember the iconic poster of Obama with the word "Hope" at the bottom that was everywhere during the campaign and is now on exhibit at the National Portrait Gallery? Well, it's now at the center of a lawsuit about whether the artist, Shepard Fairey, had the right to use a photograph of Obama and alter it for his poster without crediting the source of the photo or paying a fee for its use. The outcome will not only affect artists and photographers, it could affect all of us amateurs who use the Internet to distribute or download photographs, music and other artistic content.

Today we're going to hear from Shepard Fairey, Mannie Garcia, the photographer who took the Obama photo that Fairey used, and Greg Lastowka, a law professor specializing in intellectual property. Before we hear the interview I recorded yesterday with Fairey, let's go back to the one I recorded in January with him in which Fairey described how he developed his method of taking existing images, transforming them and using them for his street art. The first image he became famous for was of the wrestler Andre the Giant. A retrospective of Fairey's work is currently on exhibit at the Institute of Contemporary Art in Boston.

(Soundbite of recorded interview)

Shepard Fairey, welcome back to Fresh Air. Let's kind of start at the beginning of the work that you became known for, and this goes back to what - about 1989 when you started doing the Andre the Giant posters. And if you could just describe the first poster that you did in the series and tell us the inspiration behind it.

Mr. SHEPART FAIREY (Contemporary Artist & Graphic Designer): Oh, it's - the original Andre the Giant has a posse sticker. I wish that there was a profound inspiration to it. Really, all it was was I was working at a skate shop in Providence, Rhode Island, going to the Rhode Island School of Design, and making a lot of my own T-shirts and stickers. And a friend wanted to learn how to make a stencil, so I looked through the newspaper to find an image for him to cut out and saw an ad for wrestling. I said, why don't you cut this Andre the Giant image out? And he said, no way, I'm not doing that. And I said, what are you talking about? Andre the Giant is awesome, which I was very much joking about.

But what I realized was Andre's very distinctive looking, and I was fascinated by him, and I wanted to make a stencil for my friend to teach him, so I made the stencil. Then we made some stickers and put them on some stop signs and on our skateboards, and the next thing you know, people were asking about it around Providence, and the local news - free newspapers had a contest asking people if they knew what the Andre the Giant sticker was about.

And it made me realize that images in public that aren't advertising make people curious, and I started to do some research and think about the control of public space and the motives of most images in public space. And that image quickly evolved into a series of images that were more sociological, that were more about getting people to question advertising propaganda and obedience, and you know...

GROSS: Yeah, talk about some of the slogans that you'd have on the bottom of the posters.

Mr. FAIREY: Starting with the original Andre the Giant sticker, I realized, well, I have this image that has an audience, but it doesn't serve what I want to achieve philosophically, which is to get people to question Big Brother, and you know, question everything that they're asked to do. So I simplified the Andre face into what I call the icon face, which is like a counter-culture, Big Brother is watching you, and I put just the word "obey" beneath it. And I felt that obey was very provocative because a lot of people don't like to be told what to do, yet they follow the path of least resistance. But when they have to confront the word, obey, they're actually very resistant to that.

So you know, I would use phrases like, you are under surveillance. I would have a riot cop with a baton that says, I'm going to kick your ass and get away with it, with the Andre image down in the corner. And I started to create a body of work that all had the icon face as a signature but wasn't necessarily the main image. But the icon face was very, very bold and confrontational.

GROSS: Now, you did the Andre the Giant series and other series of yours in every size - stickers, really large posters on the sides of buildings. What are some of the most unusual places you've managed to get to to put your work?

(Soundbite of laughter)

Mr. FAIREY: Well, I've traveled all over the world putting posters up and stickers and stencils. I've climbed to the top of water towers in Detroit, and I've, you know, gone down to Bells Beach in Australia and actually stumbled upon one of my stickers already on a sign there. It's amazing how much smaller the world feels when there's an image out there that, you know, that travels virally. But, you know, there's so many different places I've put them. I've been pretty diligent about it.

GROSS: Some of the places that you've put them, like on a water tower, aren't legal, and you've been arrested how many times?

Mr. FAIREY: I've been arrested 14 times.

GROSS: So do you think that people who do find it intrusive to have street art on the side of their building or on public property, like, you know, stop signs or things like that, do you think that they have a point?

Mr. FAIREY: Everything has two sides of the story and has gray areas. So I do think that graffiti street art is not appropriate everywhere, and I feel that my approach is to try to find the most appropriate places where the art can be integrated. I can communicate with people. I'm a taxpayer. Theoretically, I own a little bit of the public space myself, and I can put stuff out there that creates the least inconvenience for others. I'll only put my work on buildings that are boarded up or dilapidated or already have other graffiti on them. But there's always someone who's going to have their feathers ruffled by pretty much anything, street art or otherwise. You can't please everyone. I do the best I can to be a responsible person and still communicate without any red tape.

GROSS: Now, when you were a teenager, I know you love T-shirts and you put a lot of stickers on your skateboard, and you're probably into album jacket covers. Can you talk about some of the images that meant the most to you then and why they were so important to you?

Mr. FAIREY: When I was growing up, I always drew, but I was never into art, you know, art in museums or I didn't even know most artists by name. The thing that actually got me really excited about art was skateboard graphics and punk album covers. I really loved what Jamie Reid did for the Sex Pistols, the God Save the Queen graphic and the Pretty Vacant graphic. And these were appropriated images that he had reconfigured with these ransom-note letters, and you know, it was bold and irreverent and it made a huge impact on me. I also liked Winston Smith's graphics for the Dead Kennedys. I liked Raymond Pettibon's album covers for Black Flag. These graphics made a real impact on me.

But then also, Barbara Kruger's graphics and Robbie Canal, the poster artist who did the Reagan contradiction, and you know, more recently did climate change with Obama and has a huge history. They made an impact on me, too. So I think it was the skateboarding and the T-shirts and the punk rock covers fused with some artists who did really bold, political graphics.

GROSS: Yeah, and Barbara Kruger's work is - a lot of it is just language, like a slightly inscrutable slogan put in a public place, kind of similar to what you're doing.

Mr. FAIREY: Yes, and she was definitely an inspiration for me.

GROSS: So you've referred to your work and everybody refers to your work as being viral, that you do these stickers or posters, and they catch on, and they just kind of get their own life, and they just kind of spread by other people. How does a street art image become viral?

Mr. FAIREY: Well, you first of all have to create the materials and allow them to be disseminated. Before the Internet, I made Xerox-proof sheets of a lot of my images, and like a chain letter, I would mail them to people and say, if you like what I'm doing, here's your own master copy, go run off some copies. And I also would sell very inexpensively or give away stickers. You know, it helps things going viral if they're free or cheap, that's for sure.

But now with the Internet, I have free downloads of some of my images, and I think that there are two components that are extremely important. There's, you know, accessibility and then desirability. You know, if people like the concept of what I'm doing and also visually it's compelling enough to them to want to spread it, then they also have to be able to easily access it. And so, you know, the Internet really helps that.

GROSS: Now, you've done work that started off as stickers and street posters and stuff. And now you did the Obama posters, you did the official inauguration poster. You have a campaign for Saks Fifth Avenue. You've done ads for all kinds of things, and you're about to have a show in early February opening at the Institute of Contemporary Art in Boston. So since you've designed work to be outside on the street and that work is moving inside into your first museum show, how do you feel about all that work being inside?

Mr. FAIREY: Well, I've been doing gallery shows inside for years, and that's just a controlled environment to present the work. But I think it's extremely important for the work, whether it's in a gallery or a museum, to reflect the spirit of what I do on the street. So I create the work using the same methods - the screen printings, stenciling, collage - that I use for the street work, and hopefully, the feeling that's conveyed when you see it on the street is also conveyed in the museum.

But just to make sure, I also coordinated with the Boston Institute of Contemporary Art to have a lot of outdoor locations secured so that people in Boston that don't even know about the museum show are going to see the work on the street, and that people that do know about the museum show can see both. And that's very important to me.

GROSS: You're doing a campaign for Saks Fifth Avenue, so your images are going to be on shopping bags and in the store and ads and stuff, and you've done a lot of advertising, visuals too. So it seems like you have one foot in the anti-authority world and in the street art world, and another foot in heavy consumerism. Does that feel like a contradiction to you?

Mr. FAIREY: You know, I could see how my commercial work could look like a contradiction. However, I've never said that I was against capitalism. What I've said is that people need to consume with more discretion. And I do commercial work for people that I respect and that I don't have an ethical conflict with. I turn away work from some cigarette companies and makers of large gas-guzzling vehicles. But I'll do work for people that I think are raising the bar aesthetically through commercial means because I think that there are no - there are no patrons for the arts now. It's only corporations. And if advertising is going to be out there, why not make it good?

And I also employ a Robin Hood approach, if you will. I take the money that I make from the commercial jobs and then I support our gallery that we run in Los Angeles, supplemental projects and various other creative endeavors - charity projects, pro bono work that I wouldn't be able to do without that income. So, it's just a balance that I try to maintain.

GROSS: Shepard Fairey recorded in January. Coming up, the interview I recorded with him yesterday about the lawsuit pertaining to his famous Obama "Hope" poster. This is Fresh Air.

(Soundbite of music)

GROSS: Shepard Fairey's most famous work is the Obama poster with the word "Hope" at the bottom that was everywhere during the campaign. Who took the original photo of Obama that Fairey used? As recently as last month, Fairey said he didn't know. All he knew is that it was an Associated Press photo. But others did want to know the photographer's identity, and eventually, another photojournalist solved the mystery, discovering that the photographer was Mannie Garcia working on assignment for the Associated Press.

After this revelation, the Associated Press asked Fairey for payment for use of the photo and a portion of any money he makes from it. Fairey filed a preemptive lawsuit saying that under the Fair Use section of the copyright Law, he had the right to use and transform Garcia's photo. We'll hear from Garcia in a few minutes. First, let's hear the interview I recorded with Fairey yesterday.

(Soundbite of recorded interview)

GROSS: How did you choose the photo that was the basis of your image in the Obama poster? And what made it stand out from all the others?

Mr. FAIREY: Well, I looked through a lot of photographs, but I had an initial concept that I'd like to divide Obama's face in highlighting shadow between tones of blue and red. So, it was really the direction of the gaze which I felt looked presidential, looked like Obama had some vision and some leadership, and that combined with the way that the light was falling. When I illustrated the image, I had to push the definition of the shadows to really make it fall in line with the way I wanted it to ultimately look, but the Mannie Garcia photo was a great point of departure for the illustration.

GROSS: So would you describe what the original photo looked like, the photo that you appropriated for your poster?

Mr. FAIREY: Well, unlike the photo that's been circulating in the media, the photo that I used of Mannie's was actually the one where Obama and George Clooney are both in the frame, but it was shot probably a second before or after the one that's been circulating. But what struck me about the photo wasn't the context of Darfur panel in 2006. It was the way that Obama was looking the angle. There are a lot of different historic photos of people like John F. Kennedy, the famous Korda Che Guevara photo that have this feeling of the subject knowing what lies in the future, having some sort of wisdom, and it's a specific angle of the gaze, and that was really what struck me about the photo.

GROSS: Now, some people are contesting whether that's the actual photo that you used. I don't know if you're following this or not, but there's a blog by James Danziger, who is the person who put out the alert - let's find the photo that, you know, inspired this poster. He says that when you overlay the photo with George Clooney of Obama with your poster, they're a little out of sync, whereas when you overlay that single shot of Obama with your poster, they're perfectly in sync. So do you want to address that? Because they're saying that you're claiming it's a different photo than it is.

Mr. FAIRLEY: Well, that's where the part of being an artist comes in, doesn't it? It's that liberties had to be taken with the photo to get what I wanted. The one thing that I had to adjust was whether Obama was going to be looking more to the right or more directly towards the viewer, so I had to adjust his eyes a little bit. That's the main thing that I recall adjusting. And I rotated his head really slightly. It's a hand-illustrated image that I also did some digital tweaks to before I started illustrating it. And so, yeah, that would probably explain that.

GROSS: I know some people are with you in the fact that you have the right to appropriate the image for your poster. But some of those people also wonder, why not attribute the photo? Why not find out who the photographer was and give him or her credit for it? In this case, it was Mannie Garcia.

Mr. FAIREY: Well, you know, I've attributed it to the AP all along, and I really - it may come across at this point that there was some sinister agenda to conceal the source of the photo, but that actually isn't the case. It's actually that I just wasn't diligent about figuring it out who it was, you know. I wish I could claim something more thought out, more real conceptual than that, but actually, that's just the truth of it. I didn't do the research, and I, you know, I didn't thinking that I needed to. You know, I'm perfectly willing to give Mannie Garcia the credit. I've acknowledged it, and you know, I think that he deserves the credit. I just didn't do the research.

GROSS: Now, a lot of people think that the Associated Press sued you because you used an AP photo for the Obama "Hope" poster. But it's actually you who've sued the Associated Press. Why did you decide to sue the AP?

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let's figure out how to work this out amicably, which I was vey open to and said, you know, I'm glad to pay the original license fee for the image. For all the reasons I've already given you, I didn't think that I needed to, but I'm glad to do it because, you know, I'd rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they're calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don't have the resources to license an image.

And the meaning of their art pieces is completely different than the original intention of the source image and adds a new layer, a new value. It's transformative, and I think it should be fair use. And I felt that I needed to fight the AP not for myself only, but for a whole group of artists that would be self-censored, probably, because they can't afford the photos and they don't want to be in a legal entanglement over using those types of images to communicate a message.

GROSS: You're claiming that under the fair use part of the copyright law that you have the right to take this photograph of Obama and transform it for your art without any kind of payment to the Associated Press or the photographer or even official acknowledgment. On what grounds are you claiming fair use?

Mr. FAIREY: I'm claiming fair use on the grounds that this is an image that has been transformed graphically, and it may be even more significantly transformed in its intent. The original image was intended to just document a Darfur panel in 2006 prior to Obama even announcing his candidacy, and the new image is designed to show Obama as a leader and a presidential candidate who would be pushing for progress change and a symbol of hope. These are completely different uses, and I think that it's fair use based on that intent, as well as the transformation graphically that really idealizes it in a way that is not there in the original.

GROSS: We'll hear more from Shepard Fairey and talk with the photojournalist whose photo Fairey used for his Obama poster in the second half of the show. I'm Terry Gross and this is Fresh Air.

(Soundbite of music)

GROSS: This is Fresh Air. I'm Terry Gross. We're talking the legal dispute over the iconic poster of Obama with the word "Hope" at the bottom that was everywhere during the campaign. The artist, Shepard Fairey, used a photo of Obama as the source material of his poster, but he didn't provide any attribution for the photo nor did he pay a fee for its use. When the Associated Press confirmed that the source material was a photo by Mannie Garcia taken while on assignment for the AP, the AP asked for payment. Fairey filed a preemptive lawsuit saying that under the fair use section of the copyright law, he had the right to use and transform the photo for his poster. Let's get back to our interview with Shepard Fairey.

(Soundbite of recorded interview)

GROSS: Since you probably couldn't have done the poster without a photograph to model it from, what kind of credit should the photographer get? I mean, because you transformed the photo, but there wouldn't be that transformative image without the photo, so how do you think that should figure into either, you know, acknowledgment or payments or anything?

Mr. FAIREY: Well, you know, it's a different question between the AP and the photographer, Mannie Garcia. I do think that Mannie Garcia should be credited, though I don't think legally Mannie Garcia necessarily should be able to claim a part of the revenue, which is a moot point in this case because the image wasn't created for revenue, but were it an art piece that were created for revenue, I think that a lot of artists are reasonable people and would probably like to share whatever revenue there was with the photographer if they're working from a photograph, and that's something that I think should probably be up to the artist because different artists are in different phases of their careers.

You know, I think that in the case of this Obama image, it's become something much larger than it was - I could have ever imagined that it was ever intended to be. And I'm a reasonable person that's absolutely willing to give attribution to the photo, and I'm not really in a position to be able to talk about where my mind is about other aspects of it because I'm in the middle of a lawsuit. But I think that the problem here is that the AP was attempting to bully an artist, and I think that's the most important component of this case for me. I respect Mannie Garcia as another artist, and he definitely deserves attribution.

GROSS: So how is it affecting your life and your art to now be at the middle of this copyright fair use lawsuit?

Mr. FAIREY: Well, it's not really a welcome distraction, but you know, I feel like this is an important case for me to fight, not just for myself but for a lot of other artists. I could have tried to settle with the AP, and it's not about money. You know, the worst case scenario of this - they get the image and they get the money - I can live with. I think there's an aspect of this poster that's now being honed in on that is less important than what the intent of the image was, which was to have Barack Obama be the president, which I think is the best thing for everyone in the United States, the best possible outcome. I have no regrets, but yeah, this is a distraction that's keeping me from making my art, you know, day to day. But I wouldn't go back and change anything because I couldn't be happier that Obama is president.

GROSS: Shepard Fairey, thank you so much for talking with us.

Mr. FAIREY: Yeah. Thank you, Terry.

GROSS: Shepard Fairey recorded yesterday. We contacted the Associated Press to see if they wanted to discuss the legal dispute. Paul Colford, their director of media relations sent us their official statement on the case which was written earlier this month. Here's an excerpt.

(Reading) The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey's failure to recognize the rights of photographers and their works. AP was in the middle of settlement discussions with Mr. Fairley's attorney last week in order to resolve this amicably and made it clear that a settlement would benefit the AP Emergency Relief Fund, a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts.

AP believes it is crucial to protect photographers who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP.

That's a statement from the Associated Press. Coming up, we hear from the photojournalist whose photo was used by Fairey, Mannie Garcia. This is Fresh Air.
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Mannie Garcia: The Photo That Sparked 'Hope'

TERRY GROSS, host:

Mannie Garcia was surprised to learn that it was one of his photos that Shepard Fairey used as the basis of the image in Fairey's famous Obama poster with the word "Hope" at the bottom. There's some dispute about which of Garcia's photos was used. What's not in dispute is that it was from a shoot in April 2006 at a National Press Club event with George Clooney about Darfur.

Garcia is a photojournalist who has worked in war zones as well as Washington. When I spoke with Garcia yesterday, I played him a brief excerpt of the interview I recorded last month with Shepard Fairey. This was before it was revealed that the source material was a Garcia photo. I asked Fairey if he wanted to give a shout out to the photographer whose image he used.

(Soundbite of recorded interview)

Mr. FAIREY: You know, I actually don't know who the photographer is. It was an Associated Press photo that I got off of Google, and I actually still don't know who took the photograph. They've never approached me. My illustration did stylize and idealize from the photo, and there were many other elements within the photo. And only one person in the entire time since I created the image a year ago has sent me the original and said, this is where you got that illustration, isn't it? So, you know, I'm glad the photographer didn't say, hey, I don't like that you're using this image. Maybe they are an Obama supporter, but I still don't know who it is, but I - whoever you are, thank you.

GROSS: OK. So that was Shepard Fairey recorded in January. My guest, Mannie Garcia, is the photographer who took the picture of Obama that Shepard Fairey used in his Obama "Hope" poster.

Mannie Garcia, welcome to Fresh Air. So you didn't know that it was your photograph until you were notified by a couple of people who were trying to track down whose photograph it was. You'd seen the poster, right?

Mr. MANNIE GARCIA (Photojournalist): Correct. I had seen the poster.

GROSS: And you didn't recognize that it was your photo?

Mr. GARCIA: Well, no, to answer the question, no. I didn't recognize it was my photo. There was something about the poster. I had seen it on the campaign. I had covered part of the campaign. I had been, you know, with every person that had run for the office, I had been with for that 22-month period. And it was like, you know, last year when the poster came out, I noticed it, but - and I noticed there was something about it, but there was, you know, I didn't know it was mine.

GROSS: And what was your reaction when you found out it was yours?

Mr. GARCIA: Initially when I found out, I was disappointed in the fact that, you know, someone had - was able to go onto the Internet and take something that doesn't belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it, doesn't mean it belongs to you.

GROSS: One of Shepard Fairey's points is that his use of your image transformed your image, and you said you didn't even recognize that it was your photo that Shepard Fairey used, which I suppose is an argument that he succeeded in transforming your image. So, if he takes freely your image and transforms it to the point where you don't even recognize it, is that more justified to you, do you think? Because you're saying, just because it's free and on the Internet, doesn't mean it's for the taking. So, if it's transformed, does that change things?

Mr. GARCIA: Terry, you have to understand. As a freelance photographer, on that one particular day alone, I must have made a thousand images, and that was a relatively light day, you know, April the 27th. In the normal course of business, we make a lot of photographs in a year. I don't remember every single photograph that I make.

And for example, today I was at the White House working. I may have made 100 images in, you know, less than 20 minutes. I may have filed of that, I may have filed maybe five, and I'll go to the next assignment probably three or four hours after that and I'll do it again, and in the course of the day, I can do that maybe 1,200 images. That doesn't meant that the five that I filed from the first assignment or the 15 over the three assignments in one day that the all the others don't mean anything and that the 15 that I made, just because they're on the Internet, have no value. Quite the contrary. They have a lot of value.

GROSS: The Obama poster is supposed to show Obama as a person revealing in his expression wisdom, vision, leadership. Do you remember the day back in 2006 in April when Sam Brownback was at the National Press Club talking about Darfur and you photographed Obama listening to him? Do you remember...

Mr. GARCIA: Yes, it was the 27th...

GROSS: And do you remember the expression on Obama's face and what you thought he was thinking?

Mr. GARCIA: Yes. Well, you know, the assignment was to cover George Clooney.

GROSS: Oh.

(Soundbite of laughter)

Mr. GARCIA: Because Mr. Clooney, the actor, was - Mr. Clooney was at the Press Club giving a presser along with his father, and they were - they wanted to talk about their recent trip into Darfur, how they had flown in on a small plane, gone into a camp and collected some video and some stills, and then they wanted to show the world what they had seen in hopes of bringing attention to human rights in the situation in Darfur.

Now, along with that, there were two senators, Sam Brownback and Senator Barack Obama. The image I made - I worked that entire assignment. There must be about maybe, I don't know, 160, 165 images. It's a presser, and it's - it was at the Press Club, and there's nothing glorious about this room. It's a very tiny, cramped room, and we were crammed in there, and I'm literally on my knees in front of the table. And Mr. Clooney is on the left, Senator Obama was dead center, and Senator Brownback was off to the right. There were basically three images that were filed or four.

Senator Obama is looking at and listening to Senator Brownback speak about the situation of human rights in Darfur. I'm on my knees, I'm down low, and I'm just trying to make a nice, clean head shot. And I'm waiting. I'm looking at the eyes. I mean, 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 and 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.

GROSS: There's a dispute not only between Shepard Fairey and the Associated Press, there is a dispute, I think, between you and the Associated Press. You claim that you were working as a freelancer at the time...

Mr. GARCIA: Yes.

GROSS: And that you own the rights to the photo. The Associated Press claims that they own the rights to the photo, and they're the ones who are being sued by Shepard Fairey. So what's your disagreement with the Associated Press? Could you talk about that?

Mr. GARCIA: I can talk about it briefly in that you're correct in what you've said. Basically, I'm a freelance photographer. I've always been a freelancer, and I do this to support my financial needs, to pay my bills, the mortgage. I do this for a living. And the dispute I have with AP and AP has with me, the Associated Press has with me, is coming down to whether or not there was a contract or what kind of contract. Since I had never been a freelancer for the Associated Press prior to working with them on this, I don't have that freelance photographer's(ph) agreement.

GROSS: Now, are copies of your original photograph now being sold and are they making money? Are they earning?

Mr. GARCIA: Yes. Copies of my photographs are being sold by the Danzinger projects in New York City. James Danzinger is the owner. And yes, they are requesting, I think, a handsome sum for a signed print, so...

GROSS: And you get that money, I hope, or at least a large percentage of it.

Mr. GARCIA: I don't know how the distribution - that's in dispute as well, as far as the distribution of the funds. You know, typically, the gallery would get 50 percent on any kind of piece of artwork, whether it's a photograph or painting or watercolor, whatever. Whatever the medium is, the gallery always gets 50 percent and the remaining 50 percent typically goes to the artist. But in this case, because the copyright is in dispute between myself and the Associated Press, that remaining 50 percent of money is sort of - I guess it's going to be in escrow.

GROSS: Right. It sounds complicated.

Mr. GARCIA: It is.

GROSS: Mannie Garcia, thank you so much for talking with us.

Mr. GARCIA: Terry, thank you. Thank you for the opportunity.

GROSS: Photojournalist Mannie Garcia. The Associated Press sent us a statement regarding Garcia's claim of ownership of the Obama photo. It reads: Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of the Associated Press.

Shortly after I recorded the interview with Garcia yesterday, he was notified by the National Portrait Gallery that they would like to hang a signed copy of his Obama portrait next to Shepherd Fairey's Obama poster, which is already in the gallery.

Coming up, we talk with a lawyer who can explain what's at stake for both sides and for the rest of us in Fairey lawsuit. This is Fresh Air.
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Law Professor Weighs In On 'Hope' Squabble

TERRY GROSS, host:

We've spent today's show talking about the legal dispute over Shepherd Fairey's famous poster of Obama with the word "Hope" at the bottom. What are the implications for the rest of us? To find out, we invited Greg Lastowka, a professor at Rutger's School of Law at Camden who is an expert in intellectual property. He's currently a visiting professor at Columbia University.

Fairey filed a preemptive law suit against the Associated Press claiming that under the fair use section of the copyright law he has the right to use and transform Mannie Garcia's photo of Obama.

Greg Lastowka, welcome to Fresh Air. Right now, looking at the law, give us the simple layman's version of what determines fair use, what your rights are for fair use.

Professor GREG LASTOWKA (Rutgers School of Law-Camden; Visiting Professor, Columbia University): Well, there are two important Supreme Court opinions on fair use. And I think what's most interesting about these two opinions is that in each step of the proceedings, they went different ways. So the first important case is Harper & Row, which is a 1985 case, where President Ford had unpublished memoirs. And the Nation scooped Time magazine by publishing about 300 words verbatim out of those memoirs. And Harper & Row, the publisher of the memoirs, sued the Nation and said this was an infringement.

So the district court level said that the Nation had infringed the copyright. The appellate court said this was fair use, it was news reporting, it was politically significant. And the Supreme Court reversed again and said that that was not fair use.

The other case is Campbell versus Acuff-Rose, where the rap group 2 Live Crew made their own version of Roy Orbinson's song, "Pretty Woman." They had asked for permission from Acuff-Rose who controlled the rights for the song, and Acuff-Rose refused permission, but they went ahead anyway and released the song. In that case, the district court thought it was fair use. The appellate court reversed and said there was no fair use. And the Supreme Court reversed again and said there was fair use.
So, these are the two seminal court cases on fair use, and each step in the proceedings we have a decision one way and then flips the other way.

GROSS: So what are the principles that you're supposed to use for determining whether you can use fair use to cover your appropriation of something?

Prof. LASTOWKA: Well, before 1976, this was a matter of judicial common law doctrine. So the judges had interpreted fair use looking at a variety of factors, but in 1976, there was actually an addition to the statute that had four particular factors that courts were supposed to consider when looking at fair use. So the four factors are the purpose and character of the use, the nature of copyrighted work, the amount and substantiality of the portion used, and the effect upon the market.

So, the nature of the copyrighted work looks at whether or not the work that is allegedly infringed is a work of artistic expression or factual work. I think in this case it's photojournalism, which leans more towards factual than pure creativity. So that's a factor that probably would favor Fairey.

The third factor, the amount used, is an interesting factor because it's not necessarily looking only at how much of the copyrighted work is being used. It's also looking at how important that if it is used is to the meaning of the work. So, for instance, in the case involving President Ford's memoirs, only 300 words were used out of 200,000 in the memoirs, but the Supreme Court found that that had kind of taken the heart out of the memoirs, and that was so important that the court found that this was a substantial amount being copied.

The other two factors are more problematic in understanding. The last one is the effect upon the market. So the question there is essentially, is the owner of the copyright being harmed by the defendant's use? So, what you'd look at in that case is, is this a use that would be normally licensed by the owner of the copyright? And part of that license might be a license to create derivative work. So if you own, you know, a copyright in a book, and someone wants to make a play or a movie based on the book, you could allege that you want to be able to control that market for that kind of derivative use, and you could find harm based upon your inability to license that use.

So in this case, the AP does license its photos for use in derivative works, for, you know, tansformative uses. So potentially, the AP could claim that it was harmed on that factor.

GROSS: Can you sum up for us some of the things that you think legally will work in favor of Shepherd Fairey and some of the things that you think will work against him?

Prof. LASTOWKA: Sure. One of Fairey's claims is that with regard to the first factor in fair use - the purpose and the character of the use - he is making use of the photograph in a way that is transformative, that transforms the nature of the work, right? So he's transformed it into a kind of bold, political statement, you know, a poster, rather than news reporting. So that is a key factor in fair use today, and that could potentially count in Fairey's favor.

The other question, you know, a key question in fair use cases is whether or not the use is commercial or non-commercial. Fairey says that he took the profits from the sales of the poster and put them back into making more posters. That's really interesting. I think, you know, it could be read as a non-commercial use, but of course, he sold a lot of those posters, and it was his decision to put the profits back into making more posters and giving them away, so I'm not sure if that actually cuts in favor of commercial or non- commercial.

One thing that's really important about fair use, they need to understand, is the Supreme Court has said that each fair use case needs to be decided individually, and there are no bright-line rules. And that's one of the things that's most frustrating about fair use because if you look at these four factors for fair use, none of them are strictly controlling, and you can find a case that has, you know, one of these factors going one way or the other and a finding of fair use or no fair use.

In fact, the two Supreme Court cases that are on point, the Harper & Row case and the Campbell case, are really interesting because in the Harper & Row case, you would think that borrowing such a small portion of these memoirs should count in favor of fair use, but there is a finding of no fair use. You would think in the Campbell case the fact the 2 Live Crew was actually selling a song that's based upon Roy Orbison's "Pretty Woman" in a kind of direct way should count against finding a fair use, but actually, the court in that case says it's a commercial use but it's protected by fair use. So it's really hard to establish that any particular use is going to be fair or not fair until you actually get the decision.

GROSS: You've made the point that in a lot of ways most of us are on both sides of this fair use question, that we both appropriate content and reproduce content that can be appropriated.

Prof. ASTOWKA: Right.

GROSS: Can you describe what you're talking about?

Prof. LASTOWKA: Sure. For instance, a lot of people are posting videos on YouTube now, and occasionally you post a video, and they'll be some kind of copyrighted content within the video. Maybe there is an image in the background of the video or there is a song playing in the background of the video, and it's your original video, but there is copyright interest implicated in the video, and you want to be able to post that online.

Well, in that case, you're both an original creator of content and at the same time a potential infringer of content. And as more and more of us post video and do other forms of creative activity online, we all become potentially infringers and at the same time creators.

GROSS: You know, I thought it was interesting when Facebook decided that it was going to own the rights to all the photographs posted through Facebook. There was this huge uproar. Like nobody wanted their photographs to be owned by Facebook and to let Facebook do whatever it wanted to do with it, so Facebook had to back down from that. How do you see that or do you see that as relevant to this case?

Prof. LASTOWKA: I see it as very relevant because I think the reaction of the public to something like, you know, Facebook's changing the terms of service, the fear that someone else is going to be able to monetized the creative work that you're uploading to Facebook shows that we all feel like we are authors and proprietors of the content that we create. So, yeah, I think it's very relevant because it shows the public's reaction when their own authorial interests are at stake.

GROSS: Well, I guess, you'll be watching the outcome of this case with a lot of interest. I want to thank you for talking with us about it.

Prof. LASTOWKA: Thank you so much.

GROSS: Greg Lastowka is a professor at Rutgers School of Law at Camden. He's currently a visiting professor at Columbia University. You can download a podcast of today's show on our Web site, freshair.npr.org. We also have a link to our first interview with Shepherd Fairey, which was broadcast on Inauguration day in which he talked about creating his Obama posters. A retrospective of Fairey's work is currently on display at the Institute of Contemporary Art in Boston. I'm Terry Gross.
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