Fairley now admits that he lied and says he used Mannie Garcia's AP photo on the left after all.
L.A. street artist Shepard Fairey, creator of the iconic Obama “Hope” poster, confessed on Friday to lying in court papers and admitted that he tampered with evidence in an effort to conceal which Associated Press image –shot by Associated Press (AP) photographer Mannie Garcia — he used to create his Obama poster. Initially, Fairey said he used a photograph of Obama sitting next to George Clooney. Now, Fairey admits that he used a different image of Obama — one of him alone. Even more damaging, Fairey confessed to having fabricated documents he gave to his lawyers and now also admits that he deleted electronic files that were generated to create the poster image, all in an attempt to cover up his use of the solo image of Obama. See Fairey’s amended pleadings here.
Fairey originally said he used this AP image, and now says he knowingly misidentified it and fabricated evidence to bolster his fair use claim.
Fairey’s confession wholly discredits him (and should expose him to court sanctions), but may not necessarily affect the outcome of his copyright “fair use” claim against the AP, which has counterclaimed that he infringed its copyright in both images. To prove fair use, Fairey has to prove, among other things, that he ”transformed” the AP image. Despite his admission of fraud, the issue of transformation could still go to a jury. Had Fairey used the image of Obama sitting with George Clooney (see left), as he originally contended, his claim to fair use would have been stronger: (1) his adaptation would have comprised less than the whole, original image, and (2) the effort required to transform the original image into the eventual poster would have been greater — two measures of determining fair use. See Copyright Office discussion of fair use. Also check out coverage by Wired magazine. The case, still in the discovery stage, is not likely to go to trial for some time, if it ever does.
