Photo by Associated Press, Mannie Garcia, Poster by Shepard Fairey

On October 16th, legendary street artist and propagandist Shepard Fairey apologized for deleting evidence in the on-going copyright and fair use countersuit case against the Associated Press involving an AP photo used as part of Shepard’s grassroots “Hope” campaign during the Obama presidential election.

The story hit the New York Times (and of course, the Associated Press) this weekend with mixed results among media, street and graffiti artists, Shepard Fairey fans, and fair use copyright lawyers.

The timing also couldn’t have been worse for Shepard who was at the Warhol Museum in Pittsburgh for his opening exhibit when the news hit the wires (and his apology was posted on his website). In addition, Shepard’s attorneys, headed up by Stanford University’s Fair Use Project executive director Anthony Flazone, said they would withdraw from the case because, as the New York Times reports, the artist has misled them by fabricating information and destroying other material.

Shepard’s disappointment is apparent in his apology, obviously, because it also distracts from his main point about the right of fair use which is a legal claim that certain copyrighted work can be used without paying for it. What’s vital in this case, especially for artists and collage artists (including DJs), is that fair use claims and rulings determine when an original piece of work is altered, just when is it considered a “new” piece of artwork and therefore under “fair use” claims? This of course also stems to can and how much the “new” artist can claim for market value of his/her newly created artwork.

The NYTimes goes on to quote Laurence Pulgram, the lawyer who represented Napster in the copyright fight with Metallica. “%uFFFD%uFFFDThis was a brain-dead move by Mr. Fairey, and it could be the turning point. His lawyers will still be able to argue that he made a %uFFFDfair use%uFFFD under copyright law, but it%uFFFDs a whole lot less likely that the court or jury will think that what he did was actually %uFFFDfair%uFFFD if he has lied and tried to mislead the entire world about what use he made,%uFFFD%uFFFD Pulgram said.

Shepard said Saturday that it was wrong to portray the error in his initial claim %uFFFD%uFFFDas if it was very, very premeditated and sinister.%uFFFD%uFFFD

He said the %uFFFD%uFFFDHOPE%uFFFD%uFFFD poster was %uFFFD%uFFFDa piece of grassroots activism done exactly the same way as my other posters.%uFFFD%uFFFD

Unfortunately, if it was done the exactly same way as many other Fairey posters, it bears the question of whether or not the images used in other posters as covered under fair use or not. This remains a critical aspect of Shepard’s legendary work -but also that of many other artists who use similar methods of creation.

Photo by the Associate Press of Shepard Fairey and his HOPE poster hung in the Smithsonian Institution

Here’s what Shepard had to say in his own words:

“In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in copyright laws, I wanted to notify you of a recent development in my case against The Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia, through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image. The AP claimed it was one photo, and I claimed it was another.

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.

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.

I am also sorry because my actions may distract from what should be the real focus of my case %u2013 the right to fair use so that all artists can create freely. Regardless of which of the two images was used, the fair use issue should be the same.”

– Shepard

Breaking News: Two days after posting this story, the AP announced that they are also filing against Obey Clothing as a counterclaim defendent given that they believe Shepard “generated substantial revenue from the commercial exploitation” of the Obama posters on T-shirts and merchandise sold within the Obey Clothing stores.

For more information on Shepard Fairey, this case, and street and graffiti artists, do a key word search on Shepard or look under the headings street/graffiti art on the lefthand side of the front page of Label Networks.