In a strange twist to an important case with strange twists (photographer Mannie Garcia claims AP has no rights to the image) Shepard Fairey admits that the image he used for his iconic poster was the image that everyone and their dog knew he used: The image that’s an exact match to the poster.
From the NYTimes story (here):
Attorneys for Fairey have withdrawn and, in papers filed Friday in federal court in Manhattan, stated that he misled them. They also amended the original court documents, reflecting that Fairey used a different picture.
”Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009,” the papers say. ”After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.”
This has to do serious damage to any fair use argument because obviously he’s trying to cover something up. But, as I’ve discovered by following this case “how much is too much,” when you base your work on someone else’s work can only be determined by a court. In my mind the real test would be how much time and effort was spent by Fairey to find the perfect image to base his poster on and he’s already admitted that he looked at thousands before finding the right shot.