As you may have heard, Shepard Fairey, stole a photo owned by the AP and transformed it into the iconic “HOPE” image that became a dominating symbol for Barack Obama’s presidential campaign and permeated pop culture, even making its way into the Smithsonian. But then the AP sued him and he lied, twice.

Now he’s facing a criminal probe. Why didn’t he just come clean? For an artist who has created a highly successful career by heavily borrowing from other sources, you’d think he would have been better prepared to handle something like this. It’s not like he designed this for some band or skateboard company, this was for a presidential candidate!

However, I will say this, unlike some of the other work he’s done, this is not just a simple derivative bereft of creativity or artistry. From where I sit, the portrait is clearly transformative enough from the original to qualify it for protection under fair use. The media appears to be shifting the perception of this case from Shepard lied so he’s definitely in the wrong, but don’t be fooled. This artwork should be protected under free speech. This case is beyond him at this point and the outcome—which could affect artists of all shades—shouldn’t be based on his silly little fibs. Free Shephard?