Shepard Fairey, a Los Angeles-based street artist with a long, often proud history of breaking rules, said in a statement Friday that he was wrong about which photo he used and that he tried to hide his error. It was not immediately clear whether he would drop his lawsuit against the AP over the use of the photo.
"In an attempt to conceal my mistake, I submitted false images and deleted other images," said Fairey, who has been involved in countersuits with the AP, which has alleged copyright infringement. "I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone."
He said he was taking steps to correct the information and regretted that he didn't come forward sooner.
Fairey, 39, had claimed he based his "HOPE" drawing on a photo of then-Sen. Obama seated next to actor George Clooney. The photo was taken in April 2006 by Mannie Garcia, on assignment for the AP, at the National Press Club in Washington.
Fairey now says he started with a solo photograph of Obama - taken at the same event, by the same photographer
- a picture seemingly closer to the iconic red, white and blue image of Obama, underlined with the caption HOPE. The AP has long maintained that Fairey used the solo shot.
Attorneys for Fairey have withdrawn and, in papers filed Friday in federal court in Manhattan, stated that he misled them.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."
Fairey sued the not-for-profit news cooperative in February, arguing that he didn't violate copyright law because he dramatically changed the image. The AP countersued in March, saying the uncredited, uncompensated use of an AP photo violated copyright laws and signaled a threat to journalism.
Fairey's attorneys, led by Anthony Falzone, executive director of the Fair Use Project at Stanford University, have informed the AP that they are withdrawing.
It was unclear whether Fairey would continue with his case. Although he said he was "very sorry to have hurt and disappointed colleagues, friends, and family," he added that the real issue was "the right to fair use" so artists can create freely.
"Regardless of which of the two images was used," he said, "the fair use issue should be the same."
A person close to Fairey said that the artist would continue. The person was not authorized to discuss the case and spoke on condition of anonymity.
The dispute between Fairey and the AP has led to a strong debate between artists and free speech advocates defending Fairey and photographers and journalism organizations citing the need for copyright protection.
