Manny Garcia's AP photo on the left, Shepard Fairey's poster on the right.

Charlotte Allen's op-ed about Shepard Fairey in Sunday's Times made me wonder why so many interesting questions about copyright law and fair use get obscured by bad defendant behavior. I can count at least four other high-profile cases that involved lying under oath or destroying evidence, the kind of behavior makes judges and juries, err, less than sympathetic to one's arguments.

For those who just tuned in, Fairey's the guy who created a poster supporting Barack Obama's presidential bid that was an impressive bit of retro iconography -- a cross between Andy Warhol and mid-20th century propaganda. Not sure why Obama supporters thought this was a good thing, but then, Mao's been dead for a long time (insert sarcastic emoticon here). Anyway, the Associated Press objected to the poster, saying Fairey had violated a copyrighted photo shot by the AP's Mannie Garcia at a National Press Club event in Washington, D.C. Fairey, who asked a judge to declare that the poster was a fair use (the AP later countersued), maintained for months that he'd used just a portion of a larger image that featured Obama sitting next to George Clooney. That's important, legally, because one of the four fair-use tests is whether the new object uses the entire original or just a portion of it. But the AP argued from the outset that Fairey's work reproduced virtually an entire close-up that Garcia had shot at the event.

This month, Fairey disclosed that he'd lied about which photo he had based his poster on. It was, as these things go, a whopper of an admission. This is from Fairey's website:

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.

In retrospect, Fairey's initial contention just wasn't credible. I mean, how many times has George Clooney been cropped out of a shot? More important, Fairey's case raises a great issue: how far does one have to go in transforming a photo for the use to be considered fair? Garcia's photo is easily recognizable in the poster, yet the latter has a completely different context. The original is a headshot of a politician. Fairey's poster, on the other hand, invokes the idol worship of Dear Leaders of yore. It's both hagiographic and, to me, subversive. The copyright lawyers I've talked to say that there's not a lot of case law regarding fair use and photographs. Although each fair-use claim is decided on its own merits, Fairey's has the potential to help clarify the boundaries for remixers, collage artists and others who make new works out of existing photographs without licensing them. But Fairey's lies already have weakened his case -- his legal team told the AP that it will ask the court's permission to drop out. That's just the start of the possible fallout, which may be severe enough to prevent the interesting legal questions his work raises from being answered.

-- Jon Healey