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.