NEW YORK, NY (AP).- Artist Shepard Fairey can be questioned by lawyers on why he changed his story about which 2006 photograph he used to create the famous Barack Obama HOPE poster, a judge said Tuesday as he also granted a request to let Fairey change lawyers.
U.S. District Judge Alvin K. Hellerstein made the decision during a pre-trial hearing over a dispute that arose after The Associated Press sought to collect licensing fees when it determined that the poster was based on one of its photographs.
Dale M. Cendali, a lawyer for the news agency, asked the judge for permission to depose Fairey and lawyers who represented him when he claimed his image was based on a 2006 photo of then-Sen. Barack Obama seated next to actor George Clooney.
Fairey sued the news cooperative in February, arguing that he had so transformed his source material he was protected by "fair use" guidelines. The AP countersued in March, saying Fairey had violated copyright laws.
Fairey recently said he was in error and that he used a solo, close-up shot of Obama, as the AP had long alleged.
"I've never seen anything like this," Hellerstein said of the mid-litigation switch on a key fact in the case.
He called it a "serious transgression." But the judge also said he wanted "this case to be decided on the merits."
Fairey has maintained that he transformed the photograph enough that it is considered fair use in the eyes of the courts and he is not required to pay the AP fees.
Outside court, Fairey's new lawyer, Geoffrey 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."
Cendali added: "As such, he should be sanctioned from being able to proceed with this case."
The lawyer said the case was vital for the AP, a not-for-profit news cooperative that "survives on licensing."
Hellerstein rejected a request by the AP to force Fairey to keep his original lawyers in the case, even if he adds new ones.
Those lawyers, including Anthony Falzone, executive director of the Fair Use Project at Stanford University, asked to drop out of the lawsuit after Fairey acknowledged he was mistaken about which AP photo he based his famous image on.
The judge said he had to honor a request by lawyers to withdraw when they believe a conflict would make it impossible to continue representation.
"I'm not going to burden a client with an excess number of lawyers," he said.
Hellerstein said the case could be ready for trial by early summer. The next hearing was set for March 5.
Copyright 2009 The Associated Press.