When it comes to copyright infringement, it helps to be famous. When artist Shepard Fairey wanted to create a poster during the presidential election, he went to Google. There he found a picture of Obama, and without seeking permission from the photographer, he used the photo as the source of his artist work.
Under copyright law, this is called a derivative work and creation of such works is under the control of the owner of the original work. Fairey did not know who owned the photograph he used. He did not both to check. He certainly did not have the permission of the work’s owner to create a derivative.
It took a year to determine that the photo was taken by Mannie Garcia, a photographer on assignment for the AP. Garcia says he photographed Obama for twenty months and saw the poster many times. He even snapped pictures of the poster. He says it looked familiar, but he did not realize it was his picture until someone else figured it out.
If Garcia writes a book including famous photos he has taken, will he have to ask Fairey for permission to publish a picture of the poster based on the photo taken by Garcia?
