AP Claims Shepard Fairey Admits To Lying And Trying To Destroy Evidence; His Counsel Quits (Updated)

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obamaobamaThe AP has just released a statement declaring that Shepard Fairey, the artist being accused of copyright infringement for his iconic ‘Hope’ poster that became ubiquitous during the Obama campaign, has “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.”.

According to the statement, Fairey has also admitted to using a close-up of Presdient Obama that was taken by the AP as the model for his image, not a different photo that he claimed to use that also included George Clooney, which he later cropped. The statement also says that Fairey’s legal counsel “now admitted that Fairey tried to destroy documents that would have revealed which image he actually used” and that “he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters.” Finally, the AP notes that Shepard Fairey’s lawyers are withdrawing from the case.

It’s worth pointing out that tonight’s release was issued by the AP, Fairey’s rival in this case — we’ll reach out to Fairey and be keeping an eye out for his response. Even if the claims are true, that wouldn’t necessarily mean that Fairey’s case is dead in the water, as he still has the fair use defense. He may not have taken George Clooney out of the photo, but he may well have transformed it when he painted the photograph and turned it into an icon. We’ll see what the court decides.

Also worth noting: who actually owns the photo to begin with is still being disputed. The photographer, Mannie Garcia, has asserted that he owns the image because he was serving as a temporary fill-in when it was taken, without signing a contract with the AP. For more details, see our post here. The AP has confirmed that ownership of the image is still disputed, claiming that it owns the copyright and that Garcia was indeed a salaried employee.

Update: Fairey has given us his own statement that confirms what the AP has said, though the case will continue as Fairey cites Fair Use as his defense.

Update: Fairey’s legal counsel has issued a release stating that they have not actually quit, but that they will do so “at the appropriate time”, and that their decision has nothing to do with “the underlying merits” of the case. Sounds like they still want to be championing Fair Use, but don’t want to be involved with Fairey any longer given his decision to destroy/fabricate evidence.

Statement by Tony Falzone
Executive Director, Fair Use Project
Stanford University
Center of Internet & Society

“We have not withdrawn as counsel for Shepard Fairey, and none of his other lawyers have, either. We have expressed our intention to do so at the appropriate time. There are lots of reasons lawyers may not be able to continue a representation, but in this case the underlying merits have nothing to do with that. 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. We hope this unfortunate situation does not obscure those issues.”

Here’s the full AP release:

Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press

Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. 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.

In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP’s in-house counsel, Laura Malone, “Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business.” Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.

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