Admission may paint artist into a corner

Associated Press

A widely watched court case about fair use, based on artist Shepard Fairey’s claim that he had the right to use a news photo to create his Barack Obama “Hope” poster, now appears to have nearly collapsed.

His attorneys -- led by Anthony Falzone, executive director of the Fair Use Project at Stanford University -- said that they would withdraw from the case and that the artist had misled them by fabricating information and destroying other material.

Fairey, 39, a Los Angeles-based street artist with a long, often proud history of breaking rules, admitted that he didn’t use the Associated Press photo of Obama seated next to actor George Clooney he originally said his work was based on -- which he contended would have been covered under “fair use,” the legal claim that allows exceptions to using copyrighted work without having to pay for it.

Instead he used a picture the AP has maintained was his source -- a solo photo of the future president that is seemingly closer to Fairey’s red, white and blue image of Obama, with the caption “HOPE.”


Fairey said he first made an error, then tried to cover it up by submitting false images and deleting others.

The distinction over which photo he used is crucial because fair use can sometimes be determined by how much a new work altered the original.

Fairey sued the not-for-profit news cooperative in February, after it said that it owned the copyright and demanded credit and compensation. He said he didn’t violate the copyright because he dramatically changed the image.

The AP countersued in March, saying uncredited, uncompensated use of an AP photo violated copyright laws and threatened journalism.


“Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used,” said Srinandan R. Kasi, AP vice president and general counsel. “Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair-use case and cover up his previous lies and omissions.”

Kasi said Fairey’s admission struck “at the heart” of the artist’s defense that he was protected by fair use. Kasi added that the AP would continue to pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright.

It was not immediately clear from the statements issued and from Fairey’s lawyers’ motion to amend whether Fairey would continue with his case, but a person close to Fairey said that the artist would. The person was not authorized to discuss the case and spoke on condition of anonymity.

Falzone said in a statement that the legal team’s decision to withdraw had nothing to do with the “underlying merits” of Fairey’s case.

“We believe as strongly as ever in the fair-use and free- expression issues at the center of this case, and believe Shepard will prevail on those issues,” Falzone said.

Laurence Pulgram, an intellectual property lawyer who represented the online music-sharing service Napster in a copyright fight with the band Metallica, said Saturday that Fairey’s case was in trouble.

“This was a brain-dead move by Mr. Fairey, and it could be the turning point. His lawyers will still be able to argue that he made a ‘fair use’ under copyright law, but it’s a whole lot less likely that the court or jury will think that what he did was actually ‘fair’ if he has lied and tried to mislead the entire world about what use he made,” Pulgram said.

Fairey said in a statement Friday that he was wrong about which photo he used and that he tried to hide his error.


“In an attempt to conceal my mistake, I submitted false images and deleted other images,” Fairey said. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

He said he was taking steps to correct the information and regretted that he hadn’t come forward sooner.

Although he said he was “very sorry to have hurt and disappointed colleagues, friends, and family,” Fairey said that the real issue was “the right to fair use” so artists can create freely.