By JRS

Manny Garcia’s photo for the AP (left) and Shepard Fairey’s exegesis “HOPE”

Shepard Fairey’s claim that he had the right to use a news photo to create his famous Barack Obama “HOPE” poster became a widely watched court case about fair use that now appears to have nearly collapsed. By Friday, October 16th, his attorneys—led by Anthony Falzone, executive director of the Fair Use Project at Stanford University—had withdrawn from the case and said the artist had misled them by fabricating information and destroying other material.

Fairey himself admitted on numerous accounts that he didn’t use The Associated Press photo of Obama seated next to actor George Clooney he originally said his work was based on, which he claimed would have been covered under “fair use,” the legal claim that copyrighted work can be used without having to pay for it. Instead, he used a picture the news organization has claimed was his source—a solo picture of the future president seemingly closer to the iconic red, white, and blue image of Obama, underlined with the caption “HOPE.” Shepard said that he tried to cover up his error by submitting false images and deleting others.

“Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used,” said AP vice president and general counsel Srinandan R. Kasi. “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.”

Kasi said Fairey’s admission struck “at the heart” of Fairey’s defense that he was protected by fair use.

Shepard Fairey during a court appearance in Boston

Fairey, 39, had claimed he based his “HOPE” drawing on a photo of then-Sen. Obama seated next to Clooney. The photo was taken in April 2006 by Mannie Garcia, on assignment for the AP, at the National Press Club in Washington. Fairey now says he started with a solo photograph of Obama—taken at the same event, by the same photographer (The AP has long maintained that Fairey used the solo shot for the poster).

Fairey sued the not-for-profit news cooperative in February, arguing that he didn’t violate copyright law because he dramatically changed the image. The AP countersued in March, saying the uncredited, uncompensated use of an AP photo violated copyright laws and signaled a threat to journalism.

Fairey, a Los Angeles-based street artist with a long, often proud history of breaking rules, said in a statement Friday that he was wrong about which photo he used and that he tried to hide his error. ”In an attempt to conceal my mistake, I submitted false images and deleted other images,” said Fairey. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

He said he was taking steps to correct the information and regretted that he didn’t come forward sooner.

Attorneys for Fairey have withdrawn and, in papers filed Friday in federal court in Manhattan, stated that he misled them. They also amended the original court documents, reflecting that Fairey used a different picture. Although he said he was “very sorry to have hurt and disappointed colleagues, friends, and family,” Fairey said that the real issue was “the right to fair use” so artists can create freely.

“Regardless of which of the two images was used,” he said, “the fair use issue should be the same.”

The dispute between Fairey and the AP has led to a strong debate between artists and free speech advocates defending Fairey and photographers and journalism organizations citing the need for copyright protection.

Art for Obama: Creating Manifest Hope and the Campaign for Change, Edited by Shepard and Jennifer Gross, 2009 Abrams Image

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