The Underlying Picture

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Barack Obama, Shepard Fairey, 2008

Barack Obama, Shepard Fairey, 2008

As my TIME colleague Michael Scherer noted yesterday over at Swampland, we now know what photograph served as the source of Shepard Fairey’s ubiquitous Barack Obama campaign poster. It was one taken in April 2006 at the National Press Club in Washington, where Obama had appeared with George Clooney to discuss genocide in Darfur. The photographer, Mannie Garcia, was at the time a freelancer for the Associated Press. He’s now assigned to the White House by Bloomberg News.

The Fairey image of Obama has become hugely famous — and the original stencilled portrait was just donated to the National Portrait Gallery by Heather and Tony Podesta. (Tony’s brother John heads Obama’s transition team.) But Garcia only learned that it was based on a picture he had taken when he was contacted a few days ago by a Philadelphia Inquirer photographer, Tom Gralish, who had been trying to track down the original image. (And even blogging about it.) Garcia’s response so far has been to suggest that he’d like to talk to Fairey, though he also says he’s not seeking money.

And if he changes his mind about the not-seeking-money part? He might find it hard to make a case in court. In lawsuits over image appropriation, judges commonly try to decide whether an artist’s re-use of earlier material is “transformative”. If the new image passes that test, the appropriation is protected by the fair use doctrine, which permits limited reproduction of copyrighted material.

That’s the argument I expect lawyers for Richard Prince to be making in the suit that’s been brought against him by the French photographer Patrick Cariou over Prince’s unauthorized use of Cariou’s pictures of Rastafarians in Jamaica. And I would think Fairey would not have much trouble proving that it was his pulsing three-color reinterpretation of the Obama photo that elevated it from press conference news photo to icon. His graphics may not be brilliant but they’re catchy, and so instantly recognizable for themselves that they’re already being applied to other images to Obama-cize them, a development that would support the idea that his reworking of the original photograph lifted it out of general run of the vast Obama image back.

But as the New York art attorney Donn Zaretsky always reminds people on his Art Law Blog, the law in this area is vague and outcomes are very unpredictable. That’s even the view of Pierre Leval, the federal appeals court judge who first proposed the influential “transformative” standard in a 1990 Harvard Law Review article.

Over at Prawfsblawg, you can follow a bunch of law professors as they try to hash out the whole question. (And also catch up with a video of Fairey’s appearance on The Colbert Report in which he says that he hasn’t attempted to invoke his own copyright on the image except for what he describes as blatantly commercial attempts to exploit it.)