Monday, July 13, 2009

The AP-Fairey Case Just Got Even More Interesting

The American Lawyer reports that "freelance photographer Mannie Garcia, represented by Boies, Schiller & Flexner partner George Carpinello, filed a memorandum of law in federal district court in Manhattan seeking to intervene in the dispute that so far has pitted The Associated Press against artist Shepard Fairey." Garcia claims that he (not the AP) owns the copyright in the photo.

As Marquette's Bruce Boyden noted back in February, "it all comes down to whether [Garcia] was an [AP] 'employee' at the time he took the photo." In his filing, Garcia says he is "an independent, freelance" photographer and worked for the AP "for approximately five weeks." He "worked from his apartment and his car and used his own equipment," and he "selected what photographs to take." He was "not eligible to join the union" and "received no health, vacation, unemployment or other benefits." He was "free to -- and did -- work for other individuals and corporations while working with the AP."

In a statement, the AP says it is "evaluating Mannie Garcia's position, but remains confident in AP's ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo."

Back in February, Boyden commented: "How in the world could this happen? How could an organization like AP not ensure that they have the copyright over the material that they publish? ... [I]f it did happen, it strikes me as a bizarre lapse on AP’s part."

He has a new post this afternoon, which says, first, that "Garcia’s motion will very likely be granted. He claims ownership of the photo, and this litigation will, among other things, determine AP’s ownership rights in the photo and whether Fairey infringed it. Not only is he a mandatory intervenor under Fed.R.Civ.P. 24(a), but he’s likely a necessary party under Rule 19(a)(1)(B)(i)." He also says that "it seems that Garcia has a pretty good case that he was not an AP employee at the time he took the photo" and, therefore, "[u]nless AP can produce some sort of writing, I think they may be in trouble."