More bad news for Shepard Fairey: AP amends countersuit, claims purposeful deceit

A new update in the legal battle over Shepard Fairey's iconic Obama poster, following Friday's surprise revelation by Fairey (BB post here) -- this time, no surprise:

The Associated Press today filed a motion seeking to amend its Answer, Affirmative Defenses and Counterclaims from last March in the lawsuit filed against the news cooperative by Shepard Fairey and Obey Giant Art, Inc., based on Fairey's recent revelations that he fabricated and destroyed, or attempted to destroy relevant evidence and other newly discovered information in the lawsuit. The AP disputes Fairey's most recent allegations that he made a "mistake" about which AP photo he used to create the Obama Hope poster, saying such allegations are "simply not credible."

Today's AP release, in entirety, here. The federal court filing and related material are here.

Previously: Legal battle over Shepard Fairey Obama poster takes an unexpected turn.

• [Jonathan]

  That the poster originally featured the word “PROGRESS”, but Fairey changed it to “HOPE”, is quite a tasty irony.

• [Anonymous]

  i think the real problem is this cockamamie concept of copyright. mind you, copyright has real uses in the right context. of course if the AP takes a photo, then CBS.com shouldn’t be able to reproduce it without paying the piper. otherwise photographers will have a hard time making a living.

  Still, what exactly is supposed to be copyrighted here?

  Its Barrack obama, whose image bluntly belongs to all of us know, for better or for worse. and the painting, as dopey as it was, is political commentary.

  and besides that obvious public property of the president’s image, then what is copyrightable, here? the angle of his head? are they kidding us?

  no, no. if i was the judge i would throw this suit out on its ass. even if the relevant statutes did cover it, it would be an unconstitutional restraint of free speech. and i will note the first amendment came after the copyright clause, which means it supersedes it.

  That being said, of course destroying evidence and all that is a separate problem. ask Martha Stewart.

• [Anonymous]

  It seems to me this isn’t about the AP protecting Manny from having his image appropriated its about the AP trying to get money for themselves for not getting a royalty for the use of Manny’s image. This is a major corporation hiding behind the facade of protecting another artist. They are simply mad that Fairey’s image became so popular and didn’t get a cut from it. Its not about how ethical or unethical Fairey was its about what is the AP actually after here.

• [Jackasimov]

  The more I read about him the more of a scumbag he turns out to be. Such as the recent story of him having his brick studio building sprayed/painted with a anti-graffiti coating, then throwing a whiny fit when an interviewer noted the irony. Also, copying work of other lesser-known artist and thumbing his nose at them when they call him at it. Classy guy. Rot in hell.

• [Anonymous]

  I think the heart of the matter is that Fairey is not a fine artist. He’s a commercial designer and illustrator. He’s not making some kind of social or artistic commentary. His career has been about producing work to merchandise and sell. If you look through a history of his work, all he’s done is take elements from past sources and put it into his own work. He’s been doing this since his RISD art school days. He clearly doesn’t believe in fair use himself. He files injunctions against other artists that adapt his work with the intent to parody. If anything, Fairey is setting new legal precedent that will make it more difficult for legitimate fine artists to work in the future. He and his backpedaling ways are the nail in the coffin for fair use.

• [Daemon]

  I don’t believe in Faireys.

• [Anonymous]

  THe biggest problem seems to be that anyone cares about this. As an Artist and Photographer myself if someone made an exact copy of my work then sold it as their own I would be upset. If however someone took some of my work and changed it from what my work was I do not care at all.

  Who exactly was hurt in this case? That is the problem with not only many copyright cases but many legal cases in general. Companies and increasingly individuals seem to have a false idea of injury. Fairey’s use of the image did no damage whatsoever to the photographer or the AP. No one was going to purchase the image and the people who have and will purchase the work of Fairey are not the same people who would have purchased the original image. The whole thing is just stupid.

• [Anonymous]

  this is rather ridiculous; in every way. 21st century art from music to posters has been, and will continue to be one dimensional. we appropriate, and re-appropriate imagery from the web daily and there is nothing to stop this practice. did he use the actual photo? no. he CREATED a new image based on a photo. so what? welcome to 2009. no STFU and move on.

• [Duffong]

  well, as much as I sorta like the guy, if that’s the truth, well then so be it, he deserves it.

• [ASIFA-Hollywood Animation Archive]

  This is less a lesson on copyright than it is on personal ethics. If he had acknowledged his source in the first place, and had given fair credit to the person whose work he was using, he wouldn’t have had nearly as much of a problem. Fair use doesn’t mean that you get to claim others’ work as your own.

  • [mdh]

    omg, a grafitti artist with questionable ethics! stop the presses!

• [Tdawwg]

  Now we get to see how much lawerly muscle all those for-profit images will buy: priceless!

  Fair use doesn’t mean that you get to claim others’ work as your own.

  Yes, but we’re talking about Fairey use, a different animal entirely! Kind of a “what thou will” sort of doctrine, plus perjury, you get the idea…. :D

• [theawesomerobot]

  One can only hope that this will inspire him to be a bit more logical in the future. Though, he typically reacts in a seemingly childish way (I’m making this judgment based on his constant inability to learn from mistakes) – so I wouldn’t be surprised if he continues to defy just out of spite.

• [Anonymous]

  Can I add some pertinent info that’s missing in these discussions. In commercial art, the way it works is you call, say AP, and tell them the proposed usage of the work. The usage would include the geographical location (N. America, Europe, etc.) and the number of copies. You let them know if it’s for editorial or commercial (ad, poster, etc.) use.

  They quote you a fee and you pay it. If the work proves more popular than you supposed, you simply call them up and negotiate a new fee. They have fee schedules for everything. It’s not like they make up the fee and/or refuse to license. They’re in the license business.

  From experience, I would wonder if the original fee would be beyond $1,000 to $1,500 as originally described. Not sure.

  That’s exactly the manner in which an experienced graphic artist would proceed.

  All this talk about greedy AP is way out of line. If you quote a non-profit, editorial project the fee would be very reasonable. If the project gets big and strays into commercial territory, then the fee upped to be commensurate to a commercial project, however the fee is per a fee schedule. They don’t make up terms and fees on the fly.

  The terms editorial and commercial are specific and well known to both buyers and sellers alike. Boingboing’s use of the photos accompanying this article are editorial use. Photos used in the accompanying ads on the page are commercial.

• [Anonymous]

  Here’s the story about Fairey’s spat with a Los Angeles-based blogger. What he says seems contrary to the very nature of graffiti. And by the way, I’ve seen his Obey stickers plastered on some pretty prominent buildings. I’m sure none of the owners of those buildings had a say about being tagged.

  http://www.theeastsiderla.com/2009/08/shepard-fairey-tags-eastsider-as.html

• [Stefan Jones]

  Next I want to see suits against the folks who put together the Joker, Obama-as-witch doctor, and Obama-as-Hitler posters.

• [Alex_M]

  Hey Stefan, note the word “counter-suit” up there?

  Fairey is the one who sued the AP!

  Stupid: A famous artist ‘borrowing’ from a photo from a major agency, apparently thinking he could get away with it.

  Incredibly stupid: Said artist suing the news agency rather than admit to what he did.

  Shepard Fairey stupid: Trying to fake evidence to support your bogus lawsuit.

  Seriously, I’ve got all respect for the guy’s art, but he seems to have some serious lapses in both the ethics and common-sense departments.

• [Phikus]

  Fairey magic fail.

• [das memsen]

  Can’t believe I’m actually defending the AP over an artist, but it should be noted that all the proceeds of the counter-suit will go towards an AP emergency relief fund. At least something good will come out of all this greed and stupidity…

• [cognitive dissonance]

  (sarcasm)

  i still dont see the similarity between the pictures; theres an obvious lapel pin in the painting that wasn’t in the photo.

  just like the beat to “ice ice baby” was no where close to the beat of “under pressure” by bowie and queen. that extra “tic” changes everything.

  (/sarcasm)

• [Anonymous]

  What i would like to know is how a photo of a 3rd party can somehow be construed as intellectual property subject to copyright? Where does the AP get off suing anyone? What about Obama? Can he sue the AP for ‘stealing’ his image? This is just so rediculous. The lawyers and the AP outta be ashamed of themselves.

• [RobPhrase]

  http://www.art-for-a-change.com/Obey/index.htm

  The most insightful look into how Sheperd Fairey works that I have found. OK, when I say ‘how he works’ I do mean it is a look at the plagiarism for commercialisation under the guise of art.

• [MrJM]

  “To live outside the law, you must be honest.”
  – Robert Allen Zimmerman

• [benher]

  “scumbag?” “rot in hell?” Do people in here honestly feel that what Fairey has done deserves punishments amounting to eternal damnation?

  It’s unfortunate that Shep made a mistake. But for those who championed his efforts before and after the election I think it’s pretty flabbergasting to see everyone turn 180 on him. I can understand feeling let down, but come on folks, get some perspective.

  As a former American, nothing is more depressing than to see a former fellow countryman howling for the blood of an artist for violating imaginary property all the while suppressing their outrage while both their government and Wall St. fleeces them left and right.

  RE: his response to the Eastsider – did you even read his response? It’s not whiney or hysterical at all. He does a very good job of pointing out the hypocrisy of the vultures in mass-media whose only agenda is to feed off of sensation with no regard for ethics, morals, or standards.

• [Anonymous]

  It irks the art historian in me to see all of Fairey’s major label design that he claims and sues over when I can recognize so much of it from European and Russian art. The guy makes a great living off of people’s ignorance by slapping his label on designs from war posters, novels, and illustrations from the past. I’m torn because many of these great drawings would never see the light of day, but they’re also not clip art. If he can steal them, then EVERYONE can. He shouldn’t have it both ways.

• [Anonymous]

  Hitler copyrighted his face, and then had his BFF, Herman Goering pass a law that the Chancellor’s face had to be on all stamps. Further, there was a list of documents that had to have stamps. Hitler “negotiated” a fee of one pfenning per stamp (when the stamp cost 7 pfennings) and thus was assured that he would have plenty of money to buy off, threaten, bribe or murder anyone who got in his way.

  Another law passed granding jurisdiction and requiring Gestapo investigation of any murder comitted with a “assault pistol” 11mm(.43 inch) or larger caliber. The investigation was passed to a special unit run by Mueller, which oddly enough was armed with 11.2 mm (.44 inch) caliber revolvers. This was Hitler’s special group for murdering political opponents.

• [Anonymous]

  if the guy copied the photo, but drew the actual poster art using free hand, is that still copyright issue?

• [Hools Verne]

  So now a blog is considered mass-media? He says he’s NEVER (gotta say, I find the all caps to be pretty hysterical) put his art up on a “pristine” or “operational” building without the consent of the owners when he had just pleaded guilty for doing exactly that, and he wants to question the ethics and standards of the journalist? How is copying other people’s artwork, trademarking it for yourself, and subverting the political message of said art to propel your image and brand being a champion of free speech?

  I remember seeing Fairey’s work at the ICA over the summer. I remember thinking the idea behind OBEY was really cool. I remember thinking Fairey had integrity. I don’t think so anymore.