Comments on: Manny Garcia’s own words betray the weakness of his case.

By: Ruling Imagination: Law and Creativity » Blog Archive » Cukoo Kookaburra copyright claim

Mon, 02 Nov 2009 15:34:05 +0000

[...] hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on h… Copyright claims like the one against Men at Work pervert the very basis of so much we call [...]

By: peter

peter — Sun, 12 Jul 2009 20:17:23 +0000

And, by the way, Garcia seems to have remembered shooting the specific photo after being informed it was the source for Fairey’s work. From the WSJ:

Mr. Garcia, a veteran war photographer, worked hard for the image. “I’m on my knees, I’m down low, and I’m just trying to make a nice, clean head shot,” he told National Public Radio. “I’m looking and waiting. I’m waiting for him to turn his head a little bit. . . . Boom. I was there. I was ready.”

http://online.wsj.com/article/SB123716866712036921.html

So he remembers actually shooting that photo, but he didn’t remember it when he repeatedly shot the poster because it was one of thousands he’d shot?

By: peter

peter — Sun, 12 Jul 2009 19:20:56 +0000

(1) I think the question is whether Fairey’s image can stand up on its own as a creative work. If in fact Garcia didn’t even imagine the poster was based on his own work, that failure is telling about both the fact Fairey’s work stands on its own and the fact that perhaps all the thoughtful creativity Garcia now he claims put into the photo wasn’t so thoughtful or creative. How creative is an individual shot if it’s just one of a series of many shot instantaneously?

(2) Is there any reason to doubt Tom Gralish’s version of what Garcia told him in January? Not that I’m aware of.

By: Marc

Marc — Sun, 12 Jul 2009 18:21:10 +0000

Pretty weak. Professional photographers shoot millions of images over the course of their careers and require sophisticated cataloging systems to track them all. NO photographer will remember *every* image he or she has shot, especially if he or she has shot many images of the same subject. Copyright law doesn’t require that you *remember* what you create — only that you created a work and claim rights to them. (Otherwise artists with Alzheimer’s and the heirs of dead artists would have no claims of copyright at all.)

So, it’s Garcia’s other statements saying he was OK with Fairey’s usage (assuming he made them and they’re provable in court) might mess up his claim.