Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia “was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.