The Obama silkscreen was somewhere at the show’s center. Walking up to it, I could see it was majestic—a marked transformation of the original. But seeing the poster only underscored how the traditional battle over copyright, in which the citizen was up against the corporation, has changed. In today’s world, Fairey may be an artist, but he is also something of a corporation, and he is up against another corporation, the AP. The person left out initially was the creator of the original image, Garcia, who made it in April 2006 while on assignment for the AP. While the AP believes it deserves credit and compensation, Garcia thinks that he owns the photo’s copyright. In this case, money is no longer the absolute end point: Fairey profited economically and in terms of his reputation from his name “being out there.” And from the start, Garcia would have been “out there” as well if Fairey had added his name to the work. Indeed, Garcia did profit from the image once his name got out; he earned thousands of dollars when his photographs were sold in 2009, after being exhibited at the National Gallery and a private gallery.
Obligatory attribution could easily be written into copyright law, argues Greg Lastowka, a legal scholar who is a visiting professor and specialist in intellectual property at Columbia Law School. Lastowka and others say that at the least, writers, journalists, and artists could be paid in “attribution currency.” Today, some journalists and photojournalists are dependent on their names more than their institutional affiliations—credit-by-name is the coin of the realm. “Now, journalists should build a career on an icon or an image, by being appropriated as much as appropriating,” Michael Heller, a professor at Columbia Law School and author of The Gridlock Economy, told me.
And finally, what are we to make of that other persuasive and idealistic argument for “the gift” in culture—that an open flow produces more innovations and greater enlightenment? It’s a profound concept. But there’s been a certain lack of reciprocity in some quarters of contemporary culture, including journalism. These days, many of the professional journalists and photographers who give away their work feel that they don’t receive enough in exchange, at least not yet. With proper attribution, the culture of the gift will and can help the smaller journalists. The gift economy, though, probably won’t help the AP and the big media companies much. And as always, a gift freely given is one thing, but a gift that is taken is another.