I was intrigued by a position the Associated Press took yesterday when it filed new court papers in its countersuit against Shepard Fairey over his unauthorized use of an AP photo as the basis for his Obama “Hope” poster. Basically, they said: “You lie — some more”.
To recap: A few days ago Fairey acknowledged that he had lied about just which AP photo he used. Actually, what he said was that at first he genuinely believed it was a picture of Obama with George Clooney from which he had cropped out Clooney, but he later realized that he had used a different picture from the same event, a close up of Obama alone, a shot the AP suspected all along he had used.
At the time I found my self wondering how it was possible that Fairey didn’t remember which photo he had used for a poster he made only last year. The AP apparently had the same question. In an amendment to its countersuit filed yesterday with a New York court, the AP said “it is simply not credible that Fairey somehow forgot in January 2009 which source image he used”.
Which leads to another question. By claiming to have forgotten at first which photo he had worked from, did Fairey undercut his case in his own suit against AP? Fairey argues that he transformed the original image sufficiently to qualify for fair use protection from any copyright claims by AP. But if the transformative process didn’t leave enough of an impression on him for him to recall what picture he was working from, how transformative could it be? How long did it actually take? A few minutes? A few days? Surely if you work with a photo for a few days you remember it. But if the changes you made to the image only took a few easily forgotten minutes, or even an hour, then does that really qualify as a transformation?
These are certainly questions that would come up in a case like this. And Fairey now seems to have committed himself to a version of events that could be taken to suggest he didn’t spend much time on the poster.