In an extraordinary admission Friday, artist Shepard Fairey said he submitted fabricated evidence after it became clear he had made a major mistake in his ongoing legal battle with the Associated Press and photographer Mannie Garcia.
“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,” Fairey wrote in a statement on his Web site.
Fairey’s lawyers have filed notice that they intend to quit representing him, though one of the lawyers says the decision is not because of the underlying merits of the case.
The AP has accused Fairey of copyright infringement for creating an illustration that closely resembles Garcia’s photograph without first obtaining permission. Garcia joined the case earlier this year.
Fairey’s admission resolves one of the strangest elements in the suit. Despite obvious evidence to the contrary, Fairey repeatedly cited the wrong AP photo as the one he used as a reference in his famous Barack Obama campaign poster.
In court papers and in media interviews, Fairey insisted it was a photograph by Garcia that showed both Obama and George Clooney at a 2006 event. In fact, his reference photo was a different photo by Garcia that showed only Obama. The difference is legally significant because one concern in copyright infringement cases is how closely the alleged copy resembles the original work. Fairey’s poster is a much closer match to the tightly framed Garcia photo than the wider photograph.
One of the lawyers representing Fairey, Tony Falzone, said in a statement Saturday that the attorneys in the case have expressed their intention to withdraw from the case "at the appropriate time."
The statement from Falzone, the executive director of the Fair Use Project at Stanford University, said: "There are lots of reasons lawyers may not be able to continue a representation, but in this case the underlying merits have nothing to do with that. We believe as strongly as ever in the fair use and free expression issues at the center of this case, and believe Shepard will prevail on those issues. We hope this unfortunate situation does not obscure those issues."
AP continues to pursue the lawsuit, according to a statement from AP general counsel Sri Kasi.
A court motion filed October 16 by Fairey's lawyers says Fairey made a mistake in the original lawsuit he filed on February 9, then tried to cover it up after he realized the mistake. The motion says: "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."
In the posting on his Web site Friday, Fairey apologized to his fans.
“I am taking every step to correct the information and I regret I did not come forward sooner,” Fairey’s statement concluded. “I am very sorry to have hurt and disappointed colleagues, friends, and family who have supported me in this difficult case and trying time in my life.”
Update on PDNPulse: Documents: Why the AP Thinks Fairey Was Lying.
