Liar, Liar, Fairey's on Fire

Copyright 2009 Tonya M. Evans info@legalwritepublications.com. Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, and includes the author's copyright and contact information. All other rights reserved.

~~~~~~~~~~~~

Alright, I am a little peeved today.

I was enjoying an uneventful, restful and all around pleasant morning easing into the day as I listened to gentle rains tap against my window. I had prepared a light breakfast of Chai tea, fruit, yogurt and granola and looked forward to turning on my laptop and tackling a substantial but "doable" to-do list that included some of my favorite things -- reading, researching, writing and blogging.

At the top of the list was to make some progress on my law review article From Folsom to Fairey: How Obama’s “Hope” Might Transform Fair Use. In the article, I use the pending lawsuit between graphic artist and creator of the Obama “Hope” poster, Shepard Fairey, and the Associated Press (AP). The AP argued Fairey infringed on an AP-owned photograph to create the poster (click here to see a previous post for additional details about the case). Fairey denied using the photo that AP alleged, arguing instead he used another picture that also included actor George Clooney at a press club event. If the latter had been true, he had a strong case for fair use. If the former, the poster probably bears too close a resemblance to the original to be sufficiently transformative and would therefore be an infringing use.

Upon opening my g-mail, I was bombarded with updates from my research assistant and Google alerts about the latest in the Shepard Fairey vs. AP brouhaha. I was not pleased with what I learned.

It seems that Fairey took his creativity to a new (and likely unlawful) low. Ironically, the Associated Press reported that Fairey now admits to fabricating his assertions in official court documents about which photograph he actually used as a "reference" for his poster. Basically this destroys his fair use argument. And, to make matters worse, he admits to destroying valuable evidence in his case against AP to hide his "error." His attorneys, lead by Anthony Falzone of Stanford’s Fair Use Project, have withdrawn from the case. The often controversial graphic artist is left alone to defend the seemingly indefensible.

In the grand tradition of what I refer to as the ‘fallen famous,’ Fairey issued an apology:

“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.”

Ho hum. Well. There it is.

So why am I peeved? Because of that article I mentioned above. The one I am writing that, in part, is based on Fairey’s case (despite the warnings of colleagues who cautioned against putting all of my scholarly eggs in the basket of a pending case). Luckily, I am only about 6 pages in with a healthy percentage of my research and writing still ahead of me. But the tone of my article will take a decidedly different turn, I suppose. No longer will I be able to cast Fairey’s claims -- now proven deceptive -- into a positive light and the poster child – pun intended – to make the case for “transformative use.”

Stay tuned for Part II. Right now, I need more tea!