NEW YORK, NY (October 20, 2009) – The Associated Press today filed a motion to amend its countersuit against Barack Obama "HOPE" poster artist Shepard Fairey based on Fairey's recent revelations that he had fabricated and destroyed relevant evidence in the lawsuit.
In papers filed in the U.S. District Court for the Southern District of New York today, AP says Fairey's claim that he made a "mistake" about which AP photograph he used as the basis of his "HOPE" poster is "simply not credible."
Ap says that after months of pressing the artist, Fairey was "forced to admit to the spoliation and fabrication of evidence" and that AP had found "evidence that files were missing from Fairey’s production of documents." AP says the artist only admitted his deception after AP "caught him red-handed."
Fairey is now "spinning" his story to say that he was "mistaken" so that he'll be in the best possible light for the Court and the public.
“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,” AP said in today's court papers.
“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.”
On Friday last week Fairey, a graffiti street artist, admitted he didn't use the AP photograph that he originally said his work was based on but instead used a picture the news organization has claimed all along was his source.
Also today, AP’s proposed amended counterclaim adds to the suit Obey Clothing, which is the exclusive licensee of Fairey’s trademarks and designs on clothing, as a defendant. AP also has added new allegations based on recently obtained evidence that counter Fairey’s claims that he has not profited from use of the AP image. The new allegations reveal commercial exploitation of the image by Fairey and his network of companies, on T-shirts and other merchandise.
In a statement Friday the artist said that he was wrong about which picture he used and that he tried to hide his error. It was not immediately clear whether he would drop his lawsuit against the AP over the use of the image.
"In an attempt to conceal my mistake, I submitted false images and deleted other images," said Fairey, who has been involved in countersuits with the AP, which has alleged copyright infringement. "I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone."
Lawyers for Fairey, 39, have quit his case and, in papers filed Friday in federal court in Manhattan, the attorneys said that Fairey misled them as well. They also amended the original court documents, reflecting that the artist had used a different picture.
''Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009,'' the papers said. ''After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, 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.''
The lawyers who are quitting the case, including the executive director of the Fair Use Project at Stanford University, Anthony Falzone, said it was unclear whether Fairey would continue the case or withdraw his lawsuit against AP.
In a statement issued Friday, AP vice president and general counsel Srinandan R. Kasi said Fairey's admission struck ''at the heart'' of Fairey's defense were he claims that he is protected by ''fair use.''
''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,'' Kasi said. ''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 the AP would continue to ''vigorously pursue its countersuit alleging that Fairey willfully infringed the AP's copyright in the close-up photograph of then-Senator Obama.''
Fairey also used the AP photograph for an image designed specifically for the Obama inaugural committee, and that poster sold for prices ranging from $100 to $500 for a poster signed by the artist.
As an artist, Fairey is known for using photographic images and "repurposing" them in his work, along the lines of Andy Warhol's famous use of Campbell's soup cans and Gene Korman's publicity shot of Marilyn Monroe as the basis of his pop culture screenprints.
Fairey's "HOPE" poster image was also used on the January cover of Esquire magazine, re-titled "What Now?," and the artist also did Time magazine's "Person Of The Year" cover of Obama, from a different photograph but in the same style as his "HOPE" poster.
Read earlier coverage of this case here
AP's statements, timelines, and court filings in the Shepard Fairey case
