The street artist known for his Barack Obama "HOPE," image will be permitted to switch attorneys in his copyright fight against The Associated Press, a federal judge ruled Tuesday.Shepard Fairey's previous lawyers had sought to withdraw from the case after Fairey said he had erred about which AP photo he used as the basis for "HOPE" and then tried to destroy evidence of his mistake.
The AP had asked U.S. District Judge Alvin K. Hellerstein to deny the switch, saying that Fairey's attorneys had "unique knowledge" about Fairey's actions and that the change would cause "undue delay" and bring additional expenses for the not-for-profit news organization.
"I've never seen anything like this," Hellerstein said of the mid-litigation reversal on a key fact. He called Fairey's acknowledged wrongdoing a "serious transgression," but also said he wanted "this case to be decided on the merits."
Fairey had claimed his "HOPE" image, seen throughout last year's campaign, was based on a 2006 photo of Obama seated next to actor George Clooney at a press event in Washington. Fairey now says he used a solo, close-up shot of Obama, as the AP had alleged.
Fairey sued the news cooperative in February, arguing that he had so transformed his source material that he was protected by "fair use" guidelines. The AP countersued in March, saying Fairey had violated copyright laws.
The photos in question were taken by Mannie Garcia, on assignment for the AP. Garcia filed his own lawsuit in July, claiming he owned the copyright.
Hellerstein also ruled Tuesday that Fairey can be questioned by AP lawyers before the end of the year about why he changed his story. Dale M. Cendali, a lawyer for the news agency, had asked the judge for permission to depose Fairey and his original lawyers, but Hellerstein only allowed the AP to talk to Fairey, citing client-attorney privilege and the "spectacle" of the attorneys being questioned.
Fairey's first legal team was led by Anthony Falzone, executive director of the Fair Use Project at Stanford University and widely regarded as a top copyright litigator. The artist's new attorneys include Geoffrey Stewart of the Jones Day law firm and William Fisher III, director of the Berkman Center for Internet and Society at Harvard University.
Alan Behr, a copyright attorney and a partner at the New York office of Alston & Bird LLP, said Fairey's new lawyers were impressive. He called Stewart "an accomplished Washington litigator" and added that Fisher was a "well-regarded" professor.
"We will probably see Mr. Fisher, his staff and his students providing the intellectual support and Mr. Stewart and his law firm providing the litigation muscle," said Behr, who is not a lawyer for either side.
Outside court, Stewart said there were many ways his client can win the case.
"Fair use is one of them," he said.
Cendali said outside court that Fairey had fabricated his original story about which photograph he used because he believed it would better support the fair use argument if he had based his work on the photograph with Clooney in it.
She said the "fabrication goes to the heart of this case" and that "he should be sanctioned from being able to proceed with this case."
Hellerstein said he did not expect a delay in the proceedings and that a trial was possible by early summer. The next hearing was set for March 5.
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Associated Press writer Larry Neumeister contributed to this report.