Legal battle over Shepard Fairey Obama poster takes an unexpected turn

We've been following artist Shepard Fairey's work here on Boing Boing for some time now. A disclaimer, first: I love his work, we have mutual friends, he strikes me as a stand-up guy.

Last year, Pesco was among the first to blog the Obama "Hope" poster which quickly grew far more popular than anyone anticipated. The iconic artwork spawned street cottage industries worldwide, and became an official element in the presidential campaign.

Then, the Associated Press (the same DRM-happy copyright bullies who threaten their own affiliates and try to shake down bloggers over 5-word excerpts) threatened Fairey over claims the poster was based on an AP photo, and violated their copyright. Fairey and his supporters fought back. They argued the poster was permitted under the concept of fair use because the artwork was significantly changed from the reference photo. Additionally, they added, the poster was not based on the specific photo the AP claimed — but on a different image that required more cropping and alteration, further supporting the fair use argument.

On Friday, that high-profile case took a turn nobody expected that I did not anticipate. Fairey confessed to having made false statements to a federal judge about exactly which AP photo he used. He also admitted having fabricated evidence. Snip from his statement:

The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. 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. I am taking every step to correct the information and I regret I did not come forward sooner.

The attorneys representing Fairey will soon step down. Nobody knows what will happen in the case. The question of which photo was used was a minor, tangential issue before — but Friday's revelation is not minor. As David Kravetz says in his account at Wired News, "Everybody agrees the case is now tainted and that Fairey's courthouse actions could undermine his case, even if he did not commit copyright infringement." But for those who believe in the merits of the original fair use argument, there is still hope.

Read Kravets' story (some interesting links between this case and that of the BitTorrent tracker TorrentSpy), and check out Marquette University professor Bruce Boyden's blog post here. Here's Shepard's mea culpa. Here's the AP's statement – and a note on that: I found it odd that many news organizations were sourcing that statement and a subsequent report from the AP as if they were regular wire service items, without regard for the fact that the AP is also a plaintiff in the case, and therefore inherently biased.