Thursday, July 09, 2009

Photographer moves to intervene in Fairey v. Associated Press fair use litigation

In Fairey v. Associated Press, the fair use litigation in which Associated Press accuses artist Shepard Fairey of copyright infringement in connection with a painting he did based upon a portion of a photograph which appeared in the AP, the actual photographer -- Manuel Garcia -- has now moved to intervene in the action, claiming that he -- and not the Associated Press -- is the owner of the copyright in the photograph.

Memorandum of Law in support of intervention motion

Fairey Painting of Obama

Commentary & discussion:

PDN Online (Photo District News)

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Alter_Fritz said...

Hmm, the photographer says that he was not an employee of AP.
I admit, I have no full grasp of your concept in your copyrightlaw of "work for hire", but when this guy is not a regular employee of the AP, then they simply hired him for these specific ~200 (16) photos. "Work for hire" which makes THEM the copyrightowners, does it not?

(btw. while it has its flaws too given the amendments the content industry was able to buy into it, I love the german "copyright"law which speaks of "Urheber" instead who can not give up his rights as to be the originator/creator but only can grant rights to others to use his creation in a certain way. This seems a bit fairer to artists/creators like Mr. Garcia then your concept)

neroden@gmail said...

Yeesh. I don't know the current status of the work-for-hire doctrine. It's a disgusting aberration, and arguably unconstitutional given the language of the Progress Clause ("to secure... *to Authors*..."). I hope it's read narrowly.

Anonymous said...

I believe he's simply saying that the AP was buying the right to use his photographs, as opposed to employing him. If that's true, then the AP will quickly lose this case.


Eric said...

If you employ someone and as part of their regular job duties creates something, the employer owns it under the "Work for hire" statute.

In many other situations the person retains the copyright and you are just buying license to use the image. In this case the AP has no standing to sue or recover damages as they were not the owner of the image in question.

This twist in the case will turn on basic contract law as to exactly what rights the AP "licensed" as part of the submission process.

The Common Man Speaking said...

What this man finds fascinating is that Manuel Garcia now attests that he holds the copyright certificate from the US Copyright Office. By law, if no fraud was involved in acquiring it -- and he was an independent contractor so one can look at the contract to use the photos to determine if ownership was transferred -- one must accept that it is his photo in the same way that when the RIAA shows up with such certificates the courts rule that they own those songs.

This man guesses that the AP received unlimited rights to reprint the photos in question, and possibly to even sublicense them, but not ownership.

It's strange to see soneone trying to get *in* as a defendant, but Manuel Garcia's logic makes perfect sense. Two other parties are arguing over a copyrighted image that by his reckoning neither of them own.

TonyH said...

Although I don't work for publications in the USA, I believe that freelance photojournalists (PJ's) around the world the contracts are usually quite similar.

Assuming that the PJ is a freelancer and not employed by the AP, the usual broad arrangements (details vary from agency to agency) would be that the PJ retains copyright of the image (hence allowing for use within portfolios, exhibitions and competitions) and the publication commissioning the image/article/agency will require some kind of exclusivity on the image to allow them licence the image to other news agencies and publications during the exclusivity timeframe.

This is not applicable when in very rare cases the freelance PJ has signed over the copyright to the agency. However this is "very rare" and had the PJ done so in this case I suspect he would not be making such an assertion of copyright in such a public forum if it could be so easily discredited.

It's far more likely that the AP is on a power-trip, as often happens in the news industry. Certainly it's a relatively common occurrence, for press in UK to use images without permission or payment and treat images as their own, leaving PJ's and stock photographers to have to "pursue" the press for recognition and reimbursement of copyrighted materials, and not unusual for the press to assert rights over material where they have none.


John Hutzler said...

Doesn't the copyright ownership really just come down to the contractual agreement between AP and Garcia? He's not an employee, he's a freelancer. So did he license his work to AP or did he sell it? I'm quite sure the agreement states clearly who owns the copyright. No professional photographer would be unclear on such issues.

A Visual Resource said...

By my understanding, a copyright may only be transferred by the original artist or photographer provided a written agreement to the contrary, unless they were a regular employee. If Garcia was not a regular employee and did not sign away his rights as "work for hire" he has a good case.