You Better Recognize.

By now, you’ve seen a billion pictures of Barack Obama. But if you’ve got a good eye or visual memory, you’ve already noticed something unusual, something familiar, about this one, above.

The image, by photographer Mannie Garcia, was, as he notes on his blog, taken of

then Democratic Senator from Illinois, Barak Obama, when he was with actor George Clooney at the Press Club in Washington, DC in April 2006. They talked about human rights and Darfur.

But the association with Clooney, or Darfur, is not what makes this image special, or unique. Or controversial.

This is:

Mannie Garcia’s photo is the image on which artist Shepard Fairey based his now world-famous poster of Barack Obama, an image that came not only to define the Obama campaign, but, many would argue, served as the visual brand of the “Obama Concept.” Hungrily consumed, original copies of the 350, 24×36-inch, $40 pasteups have reportedly sold on Ebay for as much as $10,000. (But in a nod to those who never got one, perhaps, Fairey has posted an enormous jpeg of the image on his site.) As is commonly known, the image’s red-and-blue posterized appearances has been widely parodied, and all of that was even before lobbyists / art collectors Tony and Heather Podesta donated the original collage to the National Portrait Gallery, officially enshrining the image in the national consciousness.

Now, the Associated Press, which employed photographer Garcia at the time he took the image, and claims it owns the original photo, wants their cut.

In a statement, released in an AP story, the AP’s director of media relations, Paul Colford, said that

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission….

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

In his defense, Fairey, above right, with the poster, is crying fair use.

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.

Complicating matters, however, are counterpointing statements by Garcia—that is, ones counterpointing the AP. In a fascinating, 10-question interview with Photo Business News & Forum blog, Garcia was asked, and answered:

2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?

I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.

3) So, you own the copyright to the image?

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

In a phone conversation with MEDIA ASSASSIN, Garcia says he’s looking for the most positive outcome, all the way around. “I’m trying to take the position with AP that I don’t wanna fight anybody.”

But it may be too late for all of that. Let’s see if Fairey’s evasive street-postering skills will keep him out of jail—or at least away from a whopping fine or licensing payment—this time.