Images and the Law

An important issue for journalists, particularly those who work on the visual side, is unfolding in the U.S. just now. Resolution of this matter may go some way to determining whether journalists can be said to 'own' the work they create, or whether it becomes public property once they have published it and thus open to exploitation by others. The issue involves the well-known Obama Hope poster, which gained widespread circulation during last year's presidential election in the U.S. The poster was the work of a Los Angeles street artist, Shepherd Fairey, who basically took an image captured by freelance photographer Mannie Garcia for the Associated Press in 2006, reworked it to resemble his own graffiti style, and began circulating it. The Obama campaign never adopted it officially but its widespread use certainly did nothing to discourage support for the Democratic candidate, or interest in the creator of the poster. Earlier this month, The AP reportedly signalled its intention to sue Fairey for infringement of its copyright on the image, a standard big media tactic. The news service didn't follow through, however, and earlier this week, Fairey and his lawyers at the Fair Use Project at the Stanford University Law School, turned the tables by suing AP, claiming the poster was an allowed use under U.S. copyright law. At this writing, The AP had not responded formally to the suit. To complicate matters further, the photographer has been quoted in news accountsas saying he had no problem with Fairey's poster and felt the situation was "unique." Fairey, meanwhile, was the subject of a piece this week on CBC's The Current.
Journalists would be well advised to keep an eye on this one for a couple of reasons. Should a judge end up siding with Fairey that his use of Garcia's image was fair, it could open the way to widespread exploitation of material which had formerly been protected under law. All an artist, or anyone else for that matter, would need to do would be to give a photo a few digital tweaks and voila, an original work which itself could be protected by copyright law. (One nice potential irony here would be if someone were to rework Fairey's poster and gain the same protection for the do-over that he is seeking). Also buried in this maze is the perpetual issue of who actually owns work done by freelancers, the client or the contractor? I'm not clear on the state of the law on that one in the U.S. but in Canada, this issue has been a point of real contention in recent years and as far as I know hasn't been fully sorted out.