In court papers filed by The Associated Press, the news organization said Shepard Fairey concocted the story that he was mistaken about which photo he used to create the famous Obama HOPE poster and disputed his contention that he has not personally profited from the iconic red, white and blue image.
Days after Fairey acknowledged trying to destroy potentially damaging evidence in his legal battle with the AP, the news agency filed amended papers in Manhattan federal court, accusing the Los Angeles-based poster artist of deliberate deception.
Until recently, Fairey had claimed his image was based on a 2006 photo of then-Sen. Barack Obama, seated next to actor George Clooney. Fairey now says that he was in error and that he used a solo, close-up shot of Obama, as the AP had long alleged.
“It is simply not credible that Fairey somehow forgot in January 2009 which source image he used to create the Infringing Works, which were completed only a year earlier in January 2008,” according to the papers filed Tuesday.
“It also strains credulity that an experienced graphic designer such as Shepard Fairey misremembered cropping George Clooney out of a source image and making other changes ... when no such cropping or other changes were ever made.”
Calls and e-mail messages to Fairey’s lead counsel, Anthony Falzone, and Fairey’s publicist, Jay Strell, were not immediately returned.
Fairey’s attorneys filed amended court papers Friday night, saying the artist had fabricated information and destroyed material to cover up evidence of which picture he used. Falzone, executive director of the Fair Use Project at Stanford University, and the other lawyers plan to seek permission from the court to withdraw from the case.
Fairey and Falzone have both said that regardless of Fairey’s action, his work is still protected by fair use.
Fairey sued the not-for-profit news cooperative in February, arguing that he didn’t violate copyright law because he dramatically changed the image and thus was protected by “fair use” guidelines. The AP countersued in March, saying the uncredited, uncompensated use of an AP photo violated copyright laws and signaled a threat to journalism.
“Fair use” is determined, in part, by how much a new work changes an older one. The photo that Fairey acknowledges using appears closer to the “HOPE” artwork than does the picture of Obama and Clooney.
Fairey has long contended that he did not make money off of the image, which has appeared on posters, buttons, shirts and stickers, in books and in museums, including the National Portrait Gallery in Washington. But the AP alleged Tuesday that Fairey, through his Obey Clothing store, has “generated substantial revenue from the commercial exploitation of the Obama posters on T-shirts and other merchandise.”
The AP cited published reports in estimating that profits from the Obama image had topped $400,000 as of September 2008, and now far exceeded that thanks to “the publicity generated by this lawsuit.”
In the papers filed Tuesday, the AP added Obey Clothing as a counterclaim defendant.
Last summer, the image appeared on the cover of Robert Kuttner’s “Obama’s Challenge,” a call for liberal policies that was released by Chelsea Green, a Vermont-based publisher. Chelsea Green President Margo Baldwin told the AP earlier this year that Fairey, who claimed sole copyright, did not ask for money, only that the publisher make a donation to the National Endowment for the Arts.
The AP plans to donate any proceeds received for past use of the photo to the AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.
Fairey has said that he first designed the image in early 2008, after he was encouraged by the Obama presidential campaign. The photo of Obama and Clooney was taken in April 2006 by Mannie Garcia, on assignment for the AP, at the National Press Club in Washington. Garcia, who also shot the solo picture, filed his own suit in July claiming he owned the copyright.