Shepard Fairey‘s sudden about-face on the source photo for his iconic Obama HOPE poster puzzled many followers of an already multilayered legal battle with the Associated Press concerning what constitutes fair use. What prompted Fairey’s admission? Lawyers, of course. Thorough ones. The American Lawyer has the scoop from the perspective of the AP’s legal team, led by Kirkland & Ellis partner Dale Cendali:
…the fuse that ignited Fairey’s bombshell revelations was lit two weeks ago, when the AP’s legal team…confronted Fairey’s lawyers from Stanford’s Fair Use Project and Durie Tangri with “trace evidence” from materials turned over in discovery. The trace evidence, Cendali said, indicated to Kirkland that Fairey hadn’t given them everything he was supposed to. “We were able to detect that there were other documents that should have been produced,” Cendali said.
Armed with that information, the Kirkland lawyers sent an October 2 letter to Fairey’s legal team, demanding that the missing material be turned over. A week later the Fairey camp responded with a letter outlining plans to amend its complaint against the AP, which initially sought a declaratory judgment that the artist’s use of a photograph of Obama was permissible under fair use doctrine.
The amended complaint and supporting motion explain that Fairey realized his mistake about which Mannie Garcia photo he had used as source material after submitting his original complaint. “Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue,” notes the motion filed Friday by Fairey’s now thoroughly disenchanted lawyers. “He also created, and delivered to his counsel for production, new documents to make it appear as though he had used [a different] photograph as his reference.”
And the plot thickens. Now the AP is fighting to keep Fairey’s lawyers on the case. They had planned to withdraw. “The AP intends to oppose any such request because, among other things, it would significantly prejudice The AP as it would take new counsel a substantial amount of time to come up to speed,â€ state the amended filings. “It would also inevitably lead to additional expenses for The AP, a not-for-profit organization that has already been forced to incur substantial cost engaging in a discovery process that was made significantly more expensive by Fairey’s lies and spoliation and fabrication of evidence.”
Previously on UnBeige: