We've been following artist Shepard Fairey's work here on Boing Boing for some time now. A disclaimer, first: I love his work, we have mutual friends, he strikes me as a stand-up guy.
Last year, Pesco was among the first to blog the Obama "Hope" poster which quickly grew far more popular than anyone anticipated. The iconic artwork spawned street cottage industries worldwide, and became an official element in the presidential campaign.
Then, the Associated Press (the same DRM-happy copyright bullies who threaten their own affiliates and try to shake down bloggers over 5-word excerpts) threatened Fairey over claims the poster was based on an AP photo, and violated their copyright. Fairey and his supporters fought back. They argued the poster was permitted under the concept of fair use because the artwork was significantly changed from the reference photo. Additionally, they added, the poster was not based on the specific photo the AP claimed -- but on a different image that required more cropping and alteration, further supporting the fair use argument.
On Friday, that high-profile case took a turn
nobody expectedthat I did not anticipate. Fairey confessed to having made false statements to a federal judge about exactly which AP photo he used. He also admitted having fabricated evidence. Snip from his statement:The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.The attorneys representing Fairey will soon step down. Nobody knows what will happen in the case. The question of which photo was used was a minor, tangential issue before -- but Friday's revelation is not minor. As David Kravetz says in his account at Wired News, "Everybody agrees the case is now tainted and that Fairey's courthouse actions could undermine his case, even if he did not commit copyright infringement." But for those who believe in the merits of the original fair use argument, there is still hope.
Read Kravets' story (some interesting links between this case and that of the BitTorrent tracker TorrentSpy), and check out Marquette University professor Bruce Boyden's blog post here. Here's Shepard's mea culpa. Here's the AP's statement - and a note on that: I found it odd that many news organizations were sourcing that statement and a subsequent report from the AP as if they were regular wire service items, without regard for the fact that the AP is also a plaintiff in the case, and therefore inherently biased.
- Shepard Fairey on the Obama Photo Controversy
- AP tries to shake down Shepard Fairey over Obama poster he didn't profit from (updated)
- Shepard Fairey shirt for Creative Commons - Boing Boing
- Shepard Fairey's Comment on Recent Updates in the AP Legal ...
- BB Video: Shepard Fairey and the Obama Poster, on Inauguration Day ...
- Boing Boing Video: Our 4-part Glen E. Friedman/Shepard Fairey ...
- Shepard Fairey's covers for Orwell's Animal Farm and 1984 - Boing ...
- Shepard Fairey and Paul Frank Industries laptops - Boing Boing
- To do in LA: Glen E. Friedman's photo show at Shepard Fairey's ...
- Stanford Fair Use Center needs your Mannie Garcia Obama photo ...
- Shepard Fairey Counterfiles in Associated Press Obama Poster Conflict
more via Wired:
Despite Fraud, ‘Hope’ Remains for Obama Artist Shepard Fairey
Street artist Shepard Fairey committed an egregious legal and ethical blunder by lying to a federal judge in his copyright battle with the Associated Press. But legal experts say his fundamental “fair use” case remains sound.
The nearly year-old legal dispute centers on Fairey’s iconic Obama Hope poster, which he based on of the photos of President Barack Obama taken in April 2006 by AP photographer Mannie Garcia at the National Press Club.
Fairey had long claimed he based his abstract graphic rendition on a photo of Obama seated next to actor George Clooney. In court documents (.pdf) filed Friday, Fairey admitted he actually used a solo shot of Obama from the same event, and had destroyed and fabricated evidence to support his lie.
It’s enough deceit that the New York judge in the case could issue sanctions against Fairey and rule in favor of the AP, regardless of whether he even committed copyright infringement. That’s what happened in the Motion Picture Association of America’s lawsuit against TorrentSpy, a BitTorrent tracker that a Los Angeles federal judge ordered to pay $111 million for pretrial shenanigans. The copyright infringement claims in that case were never even litigated.
But if Fairey’s case makes it far enough to be judged on its merits, he still has a chance.
“From a technical infringement point of view, I don’t think it makes much of a difference about what Fairey did,” said Fred von Lohmann, a copyright attorney with the Electronic Frontier Foundation. “But as a practical matter, you don’t want a situation where your client admits to deceit. I’m sure AP will argue that Fairey’s behavior indicates he had doubts about his fair-use argument.”
Fairey’s lawyers, who were themselves deceived by their client, have said they are dropping out of the case, but insist Fairey will still win in the end.
“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,” departing attorney Anthony Falzone said in a statement. “We hope this unfortunate situation does not obscure those issues.” The legal team declined further comment.
Though both photos at issue were shot by the same AP photographer, the fact that the solo shot of Obama was the source is important because the more one transforms a photograph, the higher the chances that the art constitutes a fair use of the original work.
Theoretically, Fairey still has a good defense against infringement. In essence, Fairey has redone or transformed an AP picture capturing Obama at a certain point in time, sitting with his head cocked with much of the basic lighting in the press room out of the photographer’s control. These facts themselves cannot be copyrighted, as Garcia, the photographer, had virtually no control over them, copyright lawyers said.
Von Lohmann said Fairey, 39, likely could find new lawyers to continue with the litigation, now in its pretrial discovery stage. The artist might also choose to settle.
Sri Kasi, AP general counsel, said in a statement that the AP had “correctly surmised that Fairey had attempted to hide the true identity of the source of the photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did.”
Kiwi Camara, the defense attorney for Jammie Thomas, the Minnesota woman dinged nearly $2 million for infringing 24 songs, knows well the impact that a less-than-forthcoming client might have on a jury. “If the jury believes your client mislead the court, that doesn’t go over well. ”
“If it goes to a jury trial, there’s no question, things like destruction of evidence can be played up by a trial lawyer,” he said.
A Minnesota jury delivered the whopping verdict against Thomas this summer, shortly after Thomas testified in a trial brought by the Recording Industry Association of America that she did not unlawfully download the music in question using the Kazaa file sharing network.
“I suspect what happened, they simply didn’t believe her story that she wasn’t the one that downloaded the songs,” Camara said. “We were betting that we could convince the jury that she didn’t do it.”