Artist admits using photo for 'HOPE'

NEW YORK — Shepard Fairey's claim that he had the right to use a news photo to create his famous Barack Obama "HOPE" poster became a widely watched court case about fair use that now appears to have nearly collapsed.

By Friday night, his attorneys — led by Anthony Falzone, executive director of the Fair Use Project at Stanford University — said they intend to withdraw from the case and said the artist had misled them by fabricating information and destroying other material.

Fairey himself 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 claimed would have been covered under "fair use," the legal claim that copyrighted work can be used without having to pay for it.

Instead he used a picture the news organization has claimed was his source — a solo picture of the future president seemingly closer to the iconic red, white and blue image of Obama, underlined with the caption "HOPE." Fairey said that he tried to cover up his error by submitting false images and deleting others.

The distinction is critical because fair use can sometimes be determined by how much of an original image or work was altered in the creation of a new work. If Fairey didn't need to significantly alter the image he used — in this case the solo shot of Obama — then his claim could have been undermined. Fair use cases also may consider the market value of the copyrighted material and the intended use of the newly created work.

"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 AP vice president and general counsel Srinandan R. Kasi. "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 Fairey's defense that he was protected by fair use.

Kasi said the AP would continue to pursue its countersuit alleging that Fairey willfully infringed the AP's copyright. It was not immediately clear from the statements issued and court filings if Fairey would continue with his case, but a person close to Fairey said that the artist would. The person was not authorized to discuss the case and spoke on condition of anonymity.

Falzone said in a statement that the legal team's decision to withdraw had nothing to do with the "underlying merits" of Fairey's case.