Shepard Fairey, the artist behind the ubiquitous Obama “Hope” poster, admitted over the weekend that he had lied about which photo he used as the basis for the image. Ouch. This matters because earlier this year Fairey was sued by the Associated Press, which claimed he had used a picture taken at a press conference by a photographer working for them. They thought it was a headshot of Obama sitting alone, which they argued meant Fairey hadn’t transformed it enough for his headshot poster to be protected by the “fair use” doctrine. As a pre-emptive measure, Fairey had sued them first, claiming “fair use”. He also claimed that the poster was actually based on a different photo taken that same day, one in which Obama was seen sitting with George Clooney. If that were true, it would have helped his case — somewhat — because it meant he had to transform the original image right from the start by cropping out Clooney and also because his final image was based upon a smaller portion of the A.P. photo than would be the case if it were based on an Obama headshot almost identical to the poster image.
There was a lot of anticipation that the trial, if it came to that, would help to clarify the ever-ambiguous fair use doctrine. It now looks like clarity is the last thing we’ll be getting. Fairey now says that while he originally believed that he had based the poster on the Obama/Clooney picture, he later realized that the A.P. was right — but even after he knew the truth he didn’t tell them or the court. He also destroyed evidence and created false documents to support his false story. This has made A.P. very unhappy. Also Fairey’s attorney, Anthony Falzone, director of the Fair Use Project at Stanford University, whom Fairey also misled and who is now withdrawing from the case along with Fairey’s other attorneys. And I would bet the judge won’t be taking it well either. Judges really don’t like it when you lie to the court and manufacture evidence. And the real irony is that a lot of knowledgeable people who have been following this case thought Fairey had a good chance of winning no matter which photo his poster was based on, because he had transformed the original image sufficiently to meet the fair-use test.
There’s some interesting discussion of this turn of events over on Donn Zaretsky’s Art Law Blog.