Who deserves to profit from this iconic image? Photographer Mannie Garcia shot it at the National Press Club in 2006 of then junior Senator Barack Obama, for the Associated Press. Artist Shepard Fairey then used it last year for his ubiquitious campaign posters, which have generated hundreds of thousands of dollars in revenue. Fairey acknowledges the source material, but argues that it's "fair use," and that he neither has to credit nor compensate Garcia or AP.
To further complicate the issue, Garcia's assignment was as a "temporary hire" -- neither freelancer nor staffer -- and he worked without an AP contract. Therefore he believes he solely owns the copyright to the image, but of course AP is also claiming ownership. It may be to Garcia's advantage to have AP in his corner when it comes to convincing Fairey to share profits and bestow a credit. (In this interview, Garcia says he wants recognition, but that financial gain is not his motive; he's planning to sell autographed original photo prints to raise money for charities.)
And so lawyers are hashing it out, trying to find an amicable resolution that benefits everyone. Intellectual property is a tricky business. The ability to "mash" video footage from multiple sources, and create derivative moving images, will inevitably entice videojournalists and fill courtrooms in the process. The safest solution? When in doubt, sign contracts, seek permission, give credit.
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