Shepard Fairey vs. Associated Press in the Classroom

Mannie Garcia (Associated Press) / Shepard Fairey

Mannie Garcia (Associated Press) / Shepard Fairey

I’ve notice that my students’ eyes tend to glaze over the moment I mention the words “copyright” and “fair use” in a journalism class. So for the past two semesters I have made good use of the current legal battle between the artist Shepard Fairey and the Associated Press.

The dispute centers on the use of a 2006 Associated Press photograph of Barack Obama that the artist Shepard Fairey turned into the iconic HOPE poster during the 2008 campaign.

Shepard Fairey admits he used an AP photo, but argues that his artistic transformation of the image is protected under the doctrine of fair use.

The AP argues that Fairey misappropriated its rights to the image when he created and sold posters and other merchandise with the likeness.

Mannie Garcia, the photographer who took the photo at a National Press Club event, says he owns the rights to the image because he worked as a freelancer at the time and was not an AP employee.

Yesterday the case became even more complex when Fairey admitted to submitting false images and deleting others in the legal proceedings. Fairey initially claimed he used a different AP image that less closely resembled the final poster.

“While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong,” Fairey said in a statement released on Oct 16, 2009. “In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone.”

In my online journalism classes, we look at the four factors courts consider in fair use cases. Then we listen to interviews with Shepard Fairey and Mannie Garcia that aired on NPR’s Fresh Air with Terry Gross in February 2009.

The class discussion has been lively, although the legal definition of fair use can sometimes be eclipsed by the personalities involved. After the discussion, I ask the students to rule on the case. An overwhelming majority of students – who are all undergraduates studying journalism – side with Fairey. A few students have presented an impassioned defense of Garcia, but few defend the AP.

Here are some factors that make the case particularly compelling for class discussion:

  • Fairey, not the AP, filed the first lawsuit in the case.
    After the source of the images was discovered, the AP requested compensation from Fairey. He responded with a lawsuit.
  • Fairey acknowledges he knew it was an AP photo, but says he didn’t take the time to find out who the photographer was and give credit.
    “I didn’t do the research,” Fairey has said. “I didn’t think that I needed to.”
  • Fairey says he took the profits from the HOPE poster and put it back into making more posters.
    Fairey argues that he did not gain substantial income from the posters, but that he donated it back to the cause of helping the Obama campaign.
  • Garcia didn’t recognize his photo as the source until someone else pointed it out.
    Garcia argues that he takes hundreds of photos a day and there is no way he can remember each one.
  • Garcia was actually on assignment to cover George Clooney and a young senator from Illinois happened to be there.
    The photos were taken at a 2006 National Press Club event on Sudan. Clooney had recently returned from Darfur.


  • Court rulings on fair use cases can be tricky.
    In a 1985 case, Harper & Row, the publisher of President Gerald Ford’s memoirs, sued The Nation for publishing 300 words from the book before it was released. The Supreme Court found in favor of publisher. In the 1994 case of Campbell v. Acuff-Rose, the Supreme Court ruled that 2 Live Crew’s version of Roy Orbison’s song “Pretty Woman” was covered under fair use. In both cases, the district court ruled one way, the appellate court reversed the decision, and then the Supreme Court reversed the decision again.
  • The case has implications for journalism, art, and how all of us use the Internet.
    The AP and Fairey represent two opposing views of how content from the Internet can and should be used. The AP has been more protective of its news content than most traditional news organizations and has used legal action to maintain that control.  Fairey represents the opposite end of the spectrum, which holds that the ability to use, share, and remix content is a central value of the medium.
  • Fairey’s recent admission that he falsified court documents further complicates the fair use argument and may bring an end to the case.
    Anthony Falzone, a lawyer for Fairey and the executive director of the Fair Use Project at Stanford University, has withdrawn from the case. It is up to Fairey if he wants to continue.

Brian Storm on Storytelling and the Future of News


Today, I stumbled upon a worthwhile  interview with Brian Storm, the president of MediaStorm, in Nieman Reports.

MediaStorm creates multimedia documentaries for news organizations like National Geographic, MSNBC, Slate and Reuters. They take on serious social issues like the war in the Democratic Republic of Congo,  families facing economic hardship in the rural Midwest, and posttraumatic stress of American soliders in Iraq.

Here are few unique things about MediaStorm’s approach:

  • The Web site doesn’t have an editorial focus other than to do quality social documentary storytelling.
  • Although the company’s roots are in traditional journalism, its focus is on “advocacy, not just information.”
  • It’s clients also include NGOs (Council on Foreign Relations) and for-profit companies (Starbucks).
  • The stories aren’t published on a set schedule or deadline, but when “a project is ready.”
  • The features are long for the Web (20 minutes or more), but most people who start watching a segment finish it.
  • They do not advertise  in traditional ways, but rely on word of mouth and social networking.

Here are a couple of sections of Melissa Ludtke’s interview with Brian Storm that I found especially compelling.

Brian Storm on the state of the news industry:

For years I’ve been saying it’s time for us to take journalism back. To take it out of the business development role and back into the world of why we got into journalism in the first place. We have to remember back to the time when we decided, “I want to be a journalist.” Why did we want to be a journalist? Did we wake up one day and say, “I want to make a pile of money?” I don’t think any of us did that. That’s not what drives us. We’re curious and want to learn about the world. It’s an incredible gift to enter into someone’s life and tell their story.

On digital access:

The crowd has access to these great digital cameras, to this incredible powerful publishing tool called the Web, and they have expanded the conversation. They have access to distribution that we, as professional journalists, have. This doesn’t make me fearful; it makes me excited. That’s democracy—to have more people, more input, and more access to different perspectives.

On the stories journalists should be doing:

Why are we, as professional journalists, allocating our resources for such daily, perishable stories? We should be allocating them for things that are in-depth, investigative and require the kind of expertise and professionalism that we have. We need to take a deep breath and remember all the things that we used to do, then reconsider given the new landscape and decide what is going to give us the most value over time. What is the role that we need to play? I don’t believe that is day-to-day, perishable content. I think we need to be more in-depth, more investigative, and more robust in what we do. I know that over time, that will actually pay off.

Using “One in 8 Million” in the Classroom

This past semester, I integrated the multimedia series One in 8 Million: New York Characters in Sound and Images into the regular routine of my Online Journalism II course.

When we started the semester, most of the students had limited experience recording and editing audio. Most had not taken a photojournalism course. And it was my first time trying to teach students each step of creating an audio slide show: how to record an interview, gather natural and ambient sound, take photographs, and then edit it all into a coherent story.dixonimg

I found One in 8 Million to be a great learning tool for all of us. It is a series of personal profiles presented as two-minute audio slide shows with photographs by Todd Heisler.

The subjects are characters, often with quirky jobs, backgrounds, and stories to tell. There is a profile of an urban taxidermist, a bus-depot barber, a mozzarella cheese maker, a singing waitress, and a maid who has cleaned up after four different mayors at Gracie Mansion.

The story index even gives the visual sense that the viewer is standing on a subway platform and the faces of the people appear in the subway car windows as it pulls into the station.

I did not plan out how I would use the material before the semester began. I stumbled upon a routine as we went along.

I often began class by shutting off the lights and showing the latest profile on a big projector screen. We would watch the profile and then discuss it for several minutes. Then we would watch it again and discuss it a bit more.

Then I would turn off the projector and we would just listen to the sound. We talked about why the producer might have put the sound of the cash register at that exact spot or why a specific anecdote had been included.

grajalesimgjpgThen I muted the sound and we watched it again. I asked students to pay attention to the composition, as well as the content of the photographs. “Why did the photographer focus on a person’s hand or a religious icon?” we wondered. “Why were the images arranged in that specific order?”

This process usually took about 20 minutes.

Basically, we broke down the audio slide show into its smallest parts – and we tried to figure out how the producers put it all together to make a unified whole.

We spent a lot of class time learning the technical aspects of audio and photography — and how to convert the files into the proper format. One in 8 Million helped us the focus on the storytelling.

I also stuck with the series because I like how the stories are presented.

  • The profiles are often of “everyday” people – a store owner, a guy with the cool sneakers, a teenage mom – that we routinely pass by on the way to cover a “real” news story.
  • The subject herself tells the story. The audience doesn’t hear the reporter’s voice, narration, or questions. There is no moral or kicker at the end saying what it means.
  • The person’s story is the story. There isn’t a news peg, just an interesting person with something to say.

The highlight of the experiment came near the end of the semester as the students scrambled to complete their audio slide shows. I arranged a live video chat (using Google chats, nothing fancy) with Joshua Brustein, an interactive producer at Josh answered student questions about the profiles he produced, how he found a specific person, and how he approached the interviews.

Here are two examples of Josh’s work: Paul Bockwaldt, who joined a predominantly gay rugby team to bond with his brother and Ra Ruiz, a former Christopher Street pier kid.

When Josh said he usually spent 10 hours collecting and editing audio for a two minute piece, the students were stunned. But they also seemed inspired that they were attempting to do similar work.

Do We Need a New Journalism Vocabulary?

Recently, I’ve encountered some convincing arguments that we may need an entirely new language for understanding and practicing journalism.

A friend recommended I read a book called  The Little Book of Contemplative Photography by  Howard Zehr, a professor and documentary photographer who contends that the words and metaphors of photography – “taking a picture,” “shooting,” “aiming” – are predominately aggressive and predatory, but also inaccurate.

Zehr writes:

This metaphor of taking an image does not accurately reflect the photographic process itself. When we photograph, we do not actually reach out and take anything. A camera is basically a dark box with a receptor (film or digital sensor) on one side and a small opening on the other… When we do photography, we receive an image that is reflected from the subject. Instead of photography as taking, then we can envision it as receiving. Instead of a trophy that is hunted, an image is a gift.

Zehr goes on to suggest new ways of talking about photography. He sees:

  • Image as received vs. image taken
  • Image as ours vs. image as mine
  • Subject as co-creator, collaborator vs. subject as an object
  • Photography as revelation vs. photography as expose.

I found the idea compelling, but wondered if it could be translated to other forms of journalism.

For one, Zehr’s photography is deeply connected to his religious, philosophical, and personal beliefs. He is an advocate for restorative justice, a way of approaching crime that emphasizes repairing the harm done to the whole community, not just punishing the offender. This is evident in his portraits of  victims of crimes, as well as photographs of men and women serving life sentences in prison.

Many journalists, I thought, might be suspicious of such a value-laden approach and suspicious of the language shift as well.

A few days later I stumbled upon a Web site called Journalism That Matters founded by group of news editors who hope to save the industry by rethinking traditional newsroom culture, approaches, and metaphors.

Journalism That Matters argues that the news process should be defined as:

  • Conversation rather than a lecture
  • Many-to-many rather than one-to-many
  • Community connector rather than a central authority
  • Relationship-centric rather than knowledge-centric.

I find both of these vocab-lessons valuable in thinking about how journalism might be re-imagined.

In both of these paradigms, journalism education might be less about teaching students how to gather and distribute information and more about helping students engage with the people and communities they are covering.

Tech and Art in Polaroid Project


After running an article about an effort to revive instant film cameras, asked readers to submit their own Polaroids. The Times received 932 submissions before its deadline and posted 406 of them on the Lens photography blog. They even received a Polaroid of Walker Evans by Bruce Jackson.

The Times chose to display the collection in several different ways — small thumbnails with pop-ups, medium-sized thumbnails in rows that shift, and a full screen option.

I saw the Lens post shortly after reading this quote from Daniel Bell, “Technology, like art, is a soaring exercise of human imagination.”