Shepard Fairey Pleads Guilty to Criminal Charges in AP Copyright Case

by David Walker

Artist Shepard Fairey has plead guilty to a federal criminal charge for destroying documents, falsifying evidence "and other misconduct" in his civil litigation with Associated Press two years ago, the US District Attorney in Manhattan has announced.

"Shepard Fairey went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation [against AP], creating fake documents and destroying others in an effort to subvert the civil discovery process," US Attorney Preet Bharara said in a written statement.

Sentencing is scheduled for July 16. He faces a maximum of six months in prison, and fines up to $5,000.

AP claimed copyright infringement against Fairy in 2009 because the artist used an AP image of Barack Obama without permission to create the iconic "Hope" poster in support of Obama's presidential campaign four years ago. The image was shot by Mannie Garcia.

In an effort to preempt AP's claim against him, Fairey had sought a declaration from a federal court that the Hope poster was fair use. In seeking that declaration, Fairey gave "factually untrue" information about the image he had used. (He said he had used one AP image of Obama, showing him with actor George Clooney, as a reference, when he had in fact used another tightly cropped AP image of Obama from the same event.)

Fairey admitted in 2010 that he had made a mistake about which image he had used, and said he had tried to cover up the mistake. But his fair use defense was arguably stronger with the image he originally claimed to have used.

The criminal investigation began after his false claim came to light.

The US Attorney said that Fairey created "multiple false and fraudulent documents" to cover up the fact that he had provided false information about the image he had used. "Fairey also attempted to delete multiple electronically stored documents that demonstrated that he had, in fact, used the tightly cropped image" as a reference.

According to the US Attorney, Fairey presented the "false and fraudulent documents" to AP during the discovery process in the civil litigation, while concealing his destruction of fake documents and manufacture of false documents. He also tried to get one of his employees to help mislead investigators about why and when he deleted documents, and he coached a witness in the civil case to lie about what Fairey had done, the US Attorney says.

AP, which settled its copyright claims amicably with Fairey last year, issued a muted statement from President and CEO Tom Curley. “The AP hopes that some good may come of this, by alerting judges and parties to the possibility that spoliation may exist,” Curley said.

Spoliation is the destruction of documents for illegal gain.

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