Obama Copyright Dispute Takes Strange Turn

[WSJ_law_blog]

The legal saga over the red, white and blue “hope” image of President Obama has taken an odd twist. Los Angeles street artist Shepard Fairey now is changing his story about which Associated Press photo he used to create his well-known image during the presidential race.

Fairey’s image was printed on campaign posters, buttons, brochures and the like. When the AP pressed Fairey for credit and compensation, Fairey sued the AP in U.S. District Court in Manhattan.

The copyright spat centers on whether Fairey sufficiently transformed the AP photo, whichever one is at play, to qualify his image for “fair use” protection.

Here’s a prior Law Blog post on the case.

Fairey has long said his source material was AP photographer Mannie Garcia’s photo of Obama sitting next to George Clooney at an April 2006 event. The AP has insisted he used a different image taken at the same event. Now, Fairey says AP is right.

The most recent wrinkle has prompted the withdrawal of his attorneys, who said he misled them, according to this AP story.

“Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference,” according to documents filed in federal court in Manhattan by Fairey’s former counsel, who were led by Anthony Falzone, executive director of Stanford Law School’s Fair Use Project.

Fairey himself has offered a mea culpa.

In a letter posted on Fairey’s Web site, directly above one about the health care debate titled “THE INSURANCE LOBBY’S LIES,” Mr. Fairey writes:

“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.”

Fairey goes on to apologize for his actions distracting from “what should be the real focus of my case – the right to fair use so that all artists can create freely.”

He says that no matter which image was used, the fair use element should be the same.