Obama Artist Lied About Photograph

The visual artist and designer, Shepard Fairey, who become well known for his iconic poster of US President Barack Obama, has admitted he lied about the photograph he used as a “reference” on the image. The poster was seen throughout the world during the presidential election last year and shows Obama looking upwards with the words “Hope” emblazoned along the bottom.

FaireyObama ObamaOriginal

Hope poster by Shepard Fairey on the left, the photograph owned by A.P. on the right.

The Associated Press sought credit and compensation from Fairey earlier this year, claiming that the poster was based on one of its photographs and was used without permission. Fairey then attempted to sue the A.P. claiming fair-use exceptions to copyright law, then the A.P. filed a countersuit based on “misappropriation” of the original image.

On Friday night the A.P. released a statement saying that Fairey’s lawyers have acknowledged that he lied about the photograph he based the poster on, as well as fabricating evidence to make it look like he had used another image as a reference.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used, Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used.

Fairey created fake documents in a bid to hide which image he used and created fake stencils of the “Progress” and “Hope” posters.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue.

Not The First Time

Fairey has been criticized in the past for using other’s artwork in his own without providing credit for the work. In 1993 Titan Sports, Inc. (now World Wrestling Entertainment, Inc.) threatened to sue Fairey for violating their trademarked name, Andre the Giant, when he used it on one of his artworks, “Andre The Giant Has A Posse.” Fairey changed the work, adding the word “OBEY.”

Andres obey

The irony is that Fairey has threatened to sue other artists who have used his technique of “referencing” images. Baxter Orr, a graphic designer from Texas created a piece of work featuring the Obey Giant face covered by a SARS mask which he started to sell through his own website. He received a cease-and-desist order from Fairey’s lawyers alleging it violates Fairey’s trademark. Fairey called the designer a “parasite” and a “bottom feeder.”

In relation to the A.P. case, Shepard Fairey also released a statement on Friday:

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.

The lesson here, apart from not lying and destroying evidence, is for designers to be very careful with the images they’re using and take the time to learn about copyright and fair use. What’s fair use? Here’s a useful guide for using the graphic artwork of others.

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  • Suede

    That is embarrassing. Giving credit where credit is due is actually a very simple thing to do and I don’t understand why this now so-called-artists finds something like that so hard to do. Maybe this guy is fat and ugly that’s why he’s so insecure and afraid someone will actually beat his skills. When you’ve gone that far in your career, it’s bizarre to still feel insecure about yourself.

  • http://www.waldenponder.com Hyperbolik

    Sounds like he finally messed with the wrong corporation. The A.P. is just about the last organization I would want coming after me with an accusation or lawsuit. It’ll be interesting to see what sort of compensation the A.P. is awarded.

  • kira8080

    All this copyright business is starting to get out of control. It’s one thing to protect creators to some extent, it’s another to paralyze everyone else from doing anything creative.

    That photograph has nothing special about it. It’s a photograph of Barak Obama. One among countless others. His face copied on a piece of paper by some Japanese Hi-Tech device. Read any newspaper and you will find a few of them looking almost the same.

    The poster, on the other hand is a work of art. It could have been based on any such photograph, or directly on some pose of Barak Obama himself. The artist probably picked up one of them at random and used it as a base for his creation. What’s wrong with that ?

    I hate lawyers…..

  • just_passing_by

    @kira8080 Work of art? I’m not sure. Looks like just a bit of image editing based on a photograph. Guess it can be done in 30 minutes or less, given the right piece of software. There’s nothing original about it, as it is obviously based on the photo.

    I agree on your view of (a particular type of) lawyers, though.

  • gidday

    Hi All

    Credit is owed where it is due. AP had a legal and moral right to pursue Fairey for breach of copyright. And now they want their 2 cents of compensation. Whether the work be a drawing, photo, program or anything else the owner is entitled to acknowledgement at the very least. Fairey did wrong.

  • http://www.magain.com/ Matthew Magain

    Great read Jennifer.

  • http://www.tyssendesign.com.au Tyssen

    Sounds like Fairy’s finally getting what he deserved.

  • DailyCashSaver

    Rename the article Obama Lied and then we have an even better story.

  • pug2112

    What i feel is slightly off key in all of this is the fact that a photographer can take a picture of anyone and then have legal rights over that image. Fair enough regarding Z-list celebraties.

    However, if the photographer can make a buck on a snap of potentially you – surely you should get royalties of the pic. Why? Because you did your hair that day.

  • randywehrs

    I’m going to go out on a limb and defend the artist. The rendition of the portrait is clearly different, and a work of art – not duplication. To start, look at the lines around his mouth, his collar, and the background. This wasn’t done with a computer, it’s an artistic rendering. It was wrong that he lied about what image he used to reference, I’m not defending that, but in all likelihood he was probably just trying to protect himself from the huge financial behemoth that the AP is. I think it’s a good article, but I’m interested in why most responders think he’s really wrong here, I’m quite surprised.

  • kira8080

    What if the poster was based on a frame of some video of Barak Obama giving a speech, instead of a photograph ? Would you still say it’s a copyright infringement ? Even though most news videos are mere copies of reality, not creative acts. Just wondering…

    This whole thing seems ridiculous to me. We have to put limits to this copyright craziness or who knows where it will stop.

  • Anonymous

    @DailyCashSaver… I couldn’t agree more. It seems like everybody in connection with Obama is kinda shady and dishonest.

  • someguy

    No one has put themselves in the photographer’s shoes. Does he not deserve recognition for that photograph? I think the art is in the photograph as it captures a moment that is iconic. Fairey took that photograph and did not do enough to alter it form its original form thus infringing on the copyright of the photographer, is he not an artist too that deserves his credit? We have to remember that with all of these programs out there it is easy to take something and “think” we have created something new when in reality if it does not create a piece of work that can be differentiated from the original it is a copyright infringement. I would hate to think that because of the context of the Fairey work we overlook a basic fundamental right that we all have as artists, designers, developers, etc. Our work is our own and we own them. My thoughts on it all.

  • http://www.heyraena.com raena

    I think the art is in the photograph as it captures a moment that is iconic.

    Is it really an iconic moment, though?

    If this hadn’t been part of one of the most recognisable posters of the decade, would you really say so? I mean, sure, it’s a nice picture, but at the time the ‘iconic moment’ was the fact that George Clooney was speaking at the Press Club.

  • http://cydewaze.org cydewaze

    yikes! And I have one of those “Hope” t-shirts too.

    My question I guess would be, if you see a photograph of a person from a certain angle, can you then not make a sketch or painting of that person from the same angle? I wonder where copyright ends and impression takes over.

  • http://www.fuzeblox.com standingontv

    Art of a Democrat, made by a democrat (I assume), sued by democrats (they are the media) – none of my business as far as I can tell.

  • 2SeeThePoint

    Reproduction might be trumped by transformation when that transformation has more new content and less reproduction – but where is the line between the two here?
    There seems to be a crowd out there that believes, “If I can get my hands on it, it is now MINE!”
    Objects in the public domain are one thing – creative rights are another.
    What if I sold a picture I took of a news stand with five thousand fading “Time” magazines with Obama on the cover, clearly a significant and meaningful part of the image?
    My main issue is that the transformer, Fairey, went way out of his way to deny what was true – he based his work on the original. Denial usually cloaks a sense of guilt.
    The better point, considering this forum, is that we are aware and considerate of the laws that protect the original creative rights of others.

  • http://www.digitalidiom.co.uk/web_design_services.php decook

    Woooohh What an interesting thread. I can see most views here are credible which means (to me anyhows) is that copyright is indeed a grey area. Don’t most creative industries ‘borrow’ or ‘copy’ ideas from other’s ? It’s hard to be original all the time – how can you possible even trace every image, video, MP3, poem, artwork – if we had this as a seripous threat all the time we’d be scared to create anything… and of course the Internet and Photoshop makes a whole lot easier !!!

  • http://www.digitalidiom.co.uk/web_design_services.php decook

    … interesting.. today I am working on a site and my client has sent me his page content which includes 4 portrait pictures of high-profile but dead celebrities. He expects me to use these pictures – but he’s ‘borrowed’ them from the web somewhere ??? Where do I and he stand . Now that must go on a lot ?
    And I was thinking too, where does copyright / intellectual property / reasonable use start/stop?

    It does appear that photographers in particular get more protection and guard their work more than other creative people. Does a drummer copyright his drum patterns ? Does a guitarist have sole copyright for a series of chords or a song arrangement ?

    Does a decorator copyright his living room design ?

    Are we allowed to copy anything (without the rigmarole of a license)?