When I was a first year law student, I accompanied a crusty litigation partner to an interview with a client. In discussing my preparation for the interview in the car on the way to our meeting , I called the partner’s attention to a discrepancy I had found in our client’s statements and the documentary record. He asked me what my explanation was for that discrepancy. I said on the one hand it could be x, and on the other hand….you don’t think our client would lie to us, do you?

The laugh that got is still echoing somewhere around Yellowknife.

On October 2, 2009, counsel for Plaintiffs learned new information revealing that Plaintiffs’ assertions were incorrect. Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009. [It doesn’t sound like he was “apparently” mistaken to me.]

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. [Of course–that’s what all “mistaken” people do, isn’t it? Cover their tracks?]

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.”

So he “created” “new documents” for “production”. He “created” these “new documents” all on his own? All by his lonesome? And production to whom? The court, perhaps?

Said another way, “Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters….Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.”

If “clean hands” is not a de facto fifth prong of fair use, it sure seems like it. Oopsie….

So if Mr. Fairey’s probation includes the prohibition “break no law” (very common–we’re not going to give you probation on this violation only to allow you to break another), I wonder how a little perjury conviction would fit in? A revocation of his probation do you think?