The AP has just released a statement declaring that Shepard Fairey, the artist being accused of copyright infringement for his iconic ‘Hope’ poster that became ubiquitous during the Obama campaign, has “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.”.
According to the statement, Fairey has also admitted to using a close-up of Presdient Obama that was taken by the AP as the model for his image, not a different photo that he claimed to use that also included George Clooney, which he later cropped. The statement also says that Fairey’s legal counsel “now admitted that Fairey tried to destroy documents that would have revealed which image he actually used” and that “he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters.” Finally, the AP notes that Shepard Fairey’s lawyers are withdrawing from the case.
It’s worth pointing out that tonight’s release was issued by the AP, Fairey’s rival in this case — we’ll reach out to Fairey and be keeping an eye out for his response. Even if the claims are true, that wouldn’t necessarily mean that Fairey’s case is dead in the water, as he still has the fair use defense. He may not have taken George Clooney out of the photo, but he may well have transformed it when he painted the photograph and turned it into an icon. We’ll see what the court decides.
Also worth noting: who actually owns the photo to begin with is still being disputed. The photographer, Mannie Garcia, has asserted that he owns the image because he was serving as a temporary fill-in when it was taken, without signing a contract with the AP. For more details, see our post here. The AP has confirmed that ownership of the image is still disputed, claiming that it owns the copyright and that Garcia was indeed a salaried employee.
Update: Fairey has given us his own statement that confirms what the AP has said, though the case will continue as Fairey cites Fair Use as his defense.
Update: Fairey’s legal counsel has issued a release stating that they have not actually quit, but that they will do so “at the appropriate time”, and that their decision has nothing to do with “the underlying merits” of the case. Sounds like they still want to be championing Fair Use, but don’t want to be involved with Fairey any longer given his decision to destroy/fabricate evidence.
Statement by Tony Falzone
Executive Director, Fair Use Project
Stanford University
Center of Internet & Society“We have not withdrawn as counsel for Shepard Fairey, and none of his other lawyers have, either. We have expressed our intention to do so at the appropriate time. There are lots of reasons lawyers may not be able to continue a representation, but in this case the underlying merits have nothing to do with that. 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. We hope this unfortunate situation does not obscure those issues.”
Here’s the full AP release:
Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press
Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. 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.
In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.
After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.
Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.
The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP’s in-house counsel, Laura Malone, “Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business.” Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.
I hate it when people are just stupid. There is absolutely nothing wrong with using an AP photo as the base of an original piece of art, and had the case just been about that, there would have been no question that a court would have sided with Fairey. But no, he had to go and complicate the whole issue by doing all this crap to try and conceal that he did something that wasn’t wrong to begin with. Now he has just handed the AP’s lawyers all sorts of ammunition to use against him, when they originally didn’t have a leg to stand on.
Insider tech trade scandal: google,IBM,intel. tc is mum.
Whatever the “facts” are, there are only about a billion images of Obama/President Obama that look like that, considering that is WHAT HE LOOKS LIKE. The photo itself is in no way unique enough to be protected from anything other than identical copies — certainly not from stylistic adaptations.
This whole case is idiotic.
Associated Press is a joke.
He could use it fairly, but he sold them. Classical copyright infringement. Better he should go for settlement, by sharing the money he did.
He claims to have not profited from the image. However, that could have simply been because he knew he took the image illegally. Also, who knew of him before this?
Most of his work is essentially pain-by-numbers coloring of other people’s photographs. And it is actually infringement. Fair-use of artwork doesn’t mean you can take the original, photoshop it, and put your name on it.
Who knew of Shepard Fairey before the posters? Are you serious? As @matthunter pointed out, he’d been an extremely famous artist for years before the Obama posters.
Also, the AP or the photographer has very little copyright interest in the image of Obama – as Random Logic said. In this case, Fair use DOES mean photoshopping the original (esp. if the photoshopping is transformative).
what about andre the giant?
I think he’s dead dude
Yeah, but Princess Bride is a classic
What about you questioning why someone would try to publicly litigate a case via a press release? What about waiting for that response from Fairey instead of doing fulfilling exactly what the AP’s strategy hoped for – introducing certain talking points into the discussion to leverage a settlement?
These are just the first questions that pop into my head after reading this.
Beat the AP to releasing this first.
Seems that one can’t do anything without risking being sued nowadays. Fairey having done something stupid or that AP had a point is not even what I get out of this mess. Doing business is plain scary, unless you’re a lawer.
Figures, So far every single thing with Obama is an illusion it seems.
Gee does that fact make me a vile teabagger??
“Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image,” Fairey said. “The AP claimed it was one photo, and I claimed it was another.”
New filings to the court, he said, “state for the record that the AP is correct about which photo I used…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.”
hmmmm…
Basically, I don’t care about the AP’s case or its intent to vigorously pursue Fairey. Who does? Shepard did something which affected me and many others in a positively different, emotional way than the photo he used as inspiration. Fairey’s creation is an original work, in my opinion, and the AP’s legal team is blowing goats because they have to. Of course they are fighting him, what else do they have to do besides sit on the sidelines, cash retainer fee checks and watch with their hands on their hips as their client’s core business goes down the tubes because the AP doesn’t understand the Internet? Shepard lied, which is really unfortunate for him. It’s probably the most painful lesson he’ll ever learn and I’d take a bet that he’d never do it again. None of that, however, changes the fact that Shepard is a f**king heretic genius in the world of art…
Rob
How is painting a photograph original work? You can’t profit from a cover of a song without permission, or take someone’s writing and make a couple personal tweaks and say you wrote it. The fact that the source material is a photograph makes no difference. And he knows this, which is why he lied and went to such lengths to create an alternate story and false evidence.
Ever heard of Picasso….. Google him and take a look at some of his collage artwork, might as well Google Andy Warhol while your at it.
“Bad artists copy. Good artists steal”
Pablo Picasso
>>None of that, however, changes the fact that Shepard is a f**king heretic genius in the world of art…
Just my opinion (actually a lot of people’s), but Shepard is a hack. Almost all of his well known stuff is lifted from other people’s work. Of course, that doesn’t change the fact that the Hope piece, among others, have become iconic. I just wouldn’t call him a genius.
Fairey is a plagiarist.
http://www.art-.../Obey/index.htm
fairey is famous for stealing real artists work, embellishing it, not citing his sources, and pretending it is his own work.
real artists,, great artists create nice stuff, and make little money on it,,,,then fairey the capitalist makes the big bucks by stealing the work, jacking up the saturation, jacking up the shadows, and adding the word obey to it.
he is thief, and has litle talent other than self promotion.
he is more of a craftsman than an artist,,,,,,(cutting and relying on stencils, or processes)
I’m not going to argue your assessment of him as an artist. I’ve never been particularly impressed with him myself. However, you don’t have to be a good artist, to be an artist, and I will personally defend people’s rights to make bad art, just as much as their right to make good art. The law shouldn’t discriminate based on the amount of talent.
It’s not a matter of good artist or bad artist. It’s plagiarism. Plagiarism is not a right everyone has. Before you decide to “personally defend” this guy do a little homework:
http://www.art-.../Obey/index.htm
http://www.flic...nerd/332243824/
He rips off other people’s work, sometimes only adding a border to it and his logo, and cranks out t-shirts and high-price prints. Within the art world, and even the low-brow, urban or graffiti art world he is considered a parasite–not a bad artist–not even an artist at all.
And just because the Obama image had an effect on people is not an excuse to let it go. It’s theft.
No, actually, the fact that the Obama inage had an effect on people IS precisely the “excuse!” The fact that it had an effect on people which the AP photo did not, is proof that the work he did to it, however unimpressive, was transformational, and therefore the absolute definition of fair use.
Look, this isn’t about the guy’s character, or history. It is about the single piece of art. Has he ripped other artists off? Yeah, a lot. Is this specific instance an example of that, no it isn’t! Artists use photos as the templates for pieces all the time. There is nothing wrong with that, because a painting is not a photograph. I am not defending him, I am defending the right of artists to make transformational pieces incorporating preexisting work.
While I enjoy your intelligent posts, Lee (as opposed to some of the other idiotic drivel I’ve read), I have to disagree with your defense of artists who use photographs to create their transformational art. As a photographer, I have the right to be compensated and credited for use of my photograph no matter what the end result is. If my photograph is being used to create an artist’s work, then that photograph (and myself, as the photographer) is a direct participant in the created work.
I am currently working with Shepard Fairey on a new piece of art using one of my photographs. While I can’t comment on the Obama Hope poster and how that was handled, I can state that he and his staff have been completely professional in my dealings with them (usage contracts have been signed, etc).
try this with fairey>>>>
google on of his published works
save the image to your photo imaging software
manipulate the image just a bit
call it your own and sell it
he will have a hissy fit, and try to sue you
Well a lot of people have used his image, and changed his image. And he’s not suing them is he.
Photo manipulation is one thing, but creating an original piece of art from a base or source material is another thing.
Also, this guy isn’t selling his art is he? Is he making any money from this image? (That’s a question, not a statement as I’m not sure)
For me, this whole thing just stinks. It’s a step in the wrong direction.
Fairey is right but stupid. He brought this thing on him for trying to hide stuff about provenance and not thank AP. APs photo, good as it may be, is not an icon. Fairey’s image is an icon without which most of us would have missed the photo. If I were the court I would make sure that Fairey doesnt get completely wiped by the veredict; if Fairey is getting lots of cash for this then he should share it, for being stupid. Otherwise, hope he has learnt his lesson. AP should accept an apology and shut up.
The perspective everyone is overlooking is how the Associated Press is trying to gain republishing rights to Shepard’s rendition. The AP views Shepard’s rendition as more profitable since the image was an iconic presidential election poster. Thus, the lawsuit was triggered as the Associated Press claimed they had rights to the image as well.
Just curious why you use the weird office-speak phrase “reach out” as a substitute for conventional words and phrases such as contact, call, talk to, write, etc.
As in your line above, “we’ll reach out to Fairey and be keeping an eye out for his response.”
Are you expecting hugs and kisses when Fairey responds?
Hey AP: Why didn’t you just make a deal with Fairey to make a cool collection of art pieces of people changing the world? Produce a 12 piece “amazing people” story. Sell the story. Sell the TV rights. Sell the posters and share some of the revenue with the artist. Not that hard to do.
Stop Twittering and start using your heads
Seems most people associated with Obama are crooks of some sort. We have lefties running the show here in the UK and it is all falling apart – as any enlightened America visitors will have observed.
Socialists are in it for themselves when you delve below the sheen.
(Oh, I’m a regular poster on TC but using a different nickname because I don’t wish to mix politics with tech.)
Doesn’t the AP have anything better to do?
Rather than antagonizing artists, perhaps working on creating a viable business model for yourselves?
AP RIP.
Shepard Fairey has a Posse!
@Worried: You are not mixing politics with tech. You are mixing facts with fiction. Since this is a tech blog, why don’t you provide some data to support your “most people associated with Obama are crooks” statement? And, please, let us know who you really are. Grow some balls.
Hi Erlend. It has been all over the media since before he was elected through to today. Why are you so keen on defending him? All said, I do believe (as you may too) that one should judge the individual not who associates themselves with said individual. (Hangers on can be a bit of a pain in the backside.)
Anyway, I choose not to reveal my ID simply because this is about issues, not you or I. I am no fan of the cult of celebrity or similar, simply in interesting debate and solving problems. Anyway, you may be able to enlighten me such that I reverse my view. If I don’t repost/respond it is because I have flu and it’s time to hit the sack.
Final point, I actually believe Obama to be intelligent, polite, well spoken, well meaning and much more, but no matter those around him, it will take a few years to see if he can improve our lot. (It is my view that we – entrepreneurs – will improve the world, not the politicians. CrunchPad came from Michael & crew, not the government.) Etc.
Forgot to mention, I’m a guy, so balls come as standard.
I think he meant balls as in courage, not as simply an anatomical reference. And if you don’t wish to mix politics with tech, then why the post? How does posting with different names make your posts any different? Do you actually believe when you type in another name that you’re not really yourself?
Go back to watching Glenn Beck.
Good link, G.
“The bad artists imitate, the great artists steal” Picasso
http://www.myco...chment_id=90463
Although Pablo was probably referring to the theft of style vs the duplication of raw content or elements thereof, the adage seems to hold true both ways. To me, respect for any accused plagiarist artist is derived from the way they defend or explain themselves to their accusers and detractors. Banksy, for example, openly acknowledges a huge debt of gratitude to his mentor, Blec le Rat, and has even adopted rats as his “tip of the hat” recurring trademark of sorts. You have to admire that. By contrast, to not acknowledge or credit your inspirational sources, or worse, to deny a link to source content, even when it’s painfully obvious, is just shameful.
Worried is 100% right. Obama has advisers with shaddy associations. google “obama van jones” ( now under the bus) google “obama NEA scandal” google “obama kevin jennings nambla” google “obama anita dunn mao” google “obama valerie jarrett olympic real estate”…. This not even after a full year in power…
The story that is amazing is the obama NEA scandal as it would more in sync with that particular article…
Never been to the UK.. But i doubt any prime minister would last more than 5 months with all of those “distractions” as an obamabot would call them…
Some of the opinions on here are shockingly dense, such as those calling Fairey a plagiarist. For those among us who understand art on any level, capturing the general zeitgeist using iconography that is being cross-referenced with other time periods in our history is an invaluable asset to society. It’s a tongue-in-cheek way of summarily revealing what everyone is thinking, but are usually afraid to say.
Whether you believe in Obama’s politics or not, a downtrodden nation found inspiration in Fairey’s take on what Obama represented.
For the AP to sue because a painter painted something he was looking at extremely well is completely absurd, and the case in and of itself is becoming cannon those who think the media is attempting to control what we see.
As for why Sherperd Fairey supposedly lied and destroyed evidence in this case, it could be nothing more than a way to fuck with the very idea the case exists – to come right out and say ‘Yeah I painted that photo, so what?’ would lend credence to AP’s flawed argument that he somehow ‘took’ something from them. Might he have done this, the case may have been quickly decided in AP’s favour and swept under the rug. The longer this drags out the more AP looks like a money-hungry bully.
No, Fairey is most certainly a plagiarist, jut not in this particular case. This particular case is in fact exactly as you represent. However the many instances of Fairey reproducing another artist’s work line for line, and then slapping it on a commercial T-shirt with no attribution or royalties paid, is most definitely plagiarism in its purest form.
Copyright law is seriously out of control. That’s the ultimate problem here.
I think the artist should win this case despite his actions
Hip hop music, some genre anyway, used samples heavily. P Diddy made millions doing it. But i don’t remember him lying about it. Catalog and publishing deals were made and paid for. M.A.A.R.S.S. (or whatever the name) had one of the biggest hit ever… but everything were used without authorisation and…
Why should we make this dude above the law?
Could another artist be the face of fair use without any shaddy move?
Wow. It’s plainly obvious to me that all the hellfire and damnation posted here is from the stone-throwing, self-righteous, cry babies on the right side of the isle. Cry me a river. You guys lost.
Shepard Fairy has done more to unite this country under one man (now President) than any other artist has ever done in the history of American politics. Well, maybe except for that chick Betsy that designed the American flag. Good job Betsy.
You are forgiven Mr. Fairy. And forgiveness is a very important virtue you REPS need to learn how to use because I guarantee you’ll be asking someone else for theirs someday.
What was he thinking of?…
This is crazy, if it was hand drawn based on a picture, it is an original art, seems like everyone is just trying to get a piece of this great artwork. I feel bad for the artist, he’s trying to ensure its his, and is going about it the wrong way.
He traced it, followed the lines to the letter, who cares. It’s not a photo anymore is it?
The apologists are just to funny! This punk ripped the AP off, he violated laws and yet…”who cares?” What if it was one of you he ripped off and profited from, different story?
He’s made a career of using others art and CAPITALISED off their work.
He’s a graffiti artist that gained popularity by being ANTI-Capitalist, and anti-establishment, except it was all just a ruse, and fakery. He actually had his studio covered in graffiti resistent polymer, how cute, for a g-daMN hypocrite.
Have some balls folks, don’t give a pass to freak show rip-off [artist], call him what he is….a joke.
And of course there is always more…always.
http://animalne...y-giant-parody/