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Artist Admits Using Other Photo For ‘Hope’ Poster

Publication Date: 
October 18, 2009
Source: 
The New York Times
Author: 
Liz Robbins

Anthony Falzone, executive director of the Fair Use Project, is quoted in this article on Shepard Fairey's use of an Associated Press photo to create the "Hope" posters used in President Obama's campaign. The New York Times reports:

Shepard Fairey, the artist whose “Hope” poster of Barack Obama became an iconic emblem of the presidential campaign, has admitted that he lied about which photograph from The Associated Press he used as his source, and that he then covered up evidence to substantiate his lie.

Mr. Fairey’s admission, which he made public on Friday, threw his legal battle with the news agency into disarray.

The A.P. claimed in January that Mr. Fairey owed it credit and compensation for using the photograph. But in February Mr. Fairey sued The A.P., seeking a declaratory judgment that the poster did not infringe on the agency’s copyrights and that he was entitled to the image under the “fair use” exception of the copyright law. The A.P. countersued in March, saying Mr. Fairey had misappropriated the photograph.

...

“There are lots of reasons that it becomes difficult or effectively impossible for a lawyer to continue to represent a client in this situation,” Anthony Falzone, Mr. Fairey’s lawyer and the executive director of the Fair Use Project at Stanford University, said in a telephone interview Saturday. “We have informed The A.P.’s lawyers that we do intend to withdraw as counsel upon transition to new lawyers.”

Mr. Falzone called the disclosure “a very unfortunate situation.” But he added that regardless which photograph Mr. Fairey used, the copyright issues remained unchanged. “We still believe, as strongly as ever, in the underlying fair use and expression issues of this case,” he said.

...

Whether Mr. Fairey used a photograph that cropped Mr. Obama or an uncropped photograph that showed only him could be part of a number of factors used to determine fair use, said Larry Lessig, the director of the Edmond J. Safra Foundation Center for Ethics at Harvard University.

But Mr. Lessig, who said that he has been advising Mr. Fairey but is not representing him, added that the significant issue in fair use cases is whether the image has been transformed from the original. If it has been “fundamentally transformed,” he said, then it can be used under copyright law.