Pressure from Kirkland Lawyer Forced 'Obama Hope' Artist Shepard Fairey to Admit Evidence Destruction in AP Case
By Ed Shanahan
October 19, 2009
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Why did artist Shepard Fairey suddenly admit Friday to fabricating and destroying evidence to cover up the truth about which Associated Press photograph was the genesis of his iconic "Obama Hope" poster? Because he got caught red-handed, according to Kirkland & Ellis partner Dale Cendali, who's representing the AP in its copyright dispute with Fairey over the celebrated image. (Our previous coverage of the case is here and here.)Cendali told us Monday that the fuse that ignited Fairey's bombshell revelations was lit two weeks ago, when the AP's legal team, which also includes Kirkland's Claudia Ray, 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 filed Friday by Fairey's soon-to-be-former lawyers do not reflect well on the artist (though they attempt to cast Fairey--and the lawyers--in as unincriminating a light as possible). "Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on Feburary 9, 2009," the motion says. "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 [a different] photograph as his reference."
"We're not surprised," Cendali told us. "It was always obvious which photograph he had used, as we said in our counterclaim." (The question of which photograph Fairey used is significant because the artist claimed he manipulated the original image to make it his own. The photo he now admits to using shows Obama in almost the exact pose as his depiction in the "Obama Hope" poster.)
Fairey's admission, Cendali added, completely undermines the credibility of his fair use argument. "His lies about which photograph he used go to the heart of the case," she said.
