NEW YORK — A widely watched court case about fair use, based on artist Shepard Fairey's claim that he had the right to use a news photo to create his Barack Obama "Hope" poster, now appears to have nearly collapsed.
His attorneys -- led by Anthony Falzone, executive director of the Fair Use Project at Stanford University -- said that they would withdraw from the case and that the artist had misled them by fabricating information and destroying other material.
Fairey, 39, a Los Angeles-based street artist with a long, often proud history of breaking rules, admitted 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 contended would have been covered under "fair use," the legal claim that allows exceptions to using copyrighted work without having to pay for it.
Instead he used a picture the AP has maintained was his source -- a solo photo of the future president that is seemingly closer to Fairey's red, white and blue image of Obama, with the caption "HOPE."
Fairey said he first made an error, then tried to cover it up by submitting false images and deleting others.
The distinction over which photo he used is crucial because fair use can sometimes be determined by how much a new work altered the original.
Fairey sued the not-for-profit news cooperative in February, after it said that it owned the copyright and demanded credit and compensation. He said he didn't violate the copyright because he dramatically changed the image.
The AP countersued in March, saying uncredited, uncompensated use of an AP photo violated copyright laws and threatened journalism.
"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 Srinandan R. Kasi, AP vice president and general counsel. "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 the artist's defense that he was protected by fair use. Kasi added that the AP would continue to pursue its countersuit alleging that Fairey willfully infringed the AP's copyright.
