ARTIST SHEPARD FAIREY PLEADS GUILTY IN MANHATTAN FEDERAL COURT TO CONTEMPT CHARGE IN CONNECTION WITH CIVIL LITIGATION OVER OBAMA “HOPE” IMAGE
FOR IMMEDIATE RELEASE
Friday February 24, 2012
Preet Bharara, the United States Attorney for the Southern District of New York, announced that artist SHEPARD FAIREY pled guilty today to one count of criminal contempt for destroying documents, manufacturing evidence, and other misconduct in civil litigation against the Associated Press (“AP”) regarding an image he created to support then-Senator Barack Obama’s presidential campaign in 2008. FAIREY entered his plea of guilty before U.S. Magistrate Judge Frank Maas.
Manhattan U.S. Attorney Preet Bharara said: “As he admitted today, Shepard Fairey, an artist associated with an iconic image from the 2008 presidential campaign, went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation, creating fake documents and destroying others in an effort to subvert the civil discovery process. The justice system – civil and criminal – depends on the integrity of lawyers and non-lawyers alike to follow the rules. Those who break the rules risk sanctions, including, in certain cases, criminal prosecution.”
According to the Information filed today in Manhattan federal court and statements made during FAIREY’s guilty plea:
In early 2008, to support the candidacy of then-Senator Barack Obama for the Office of President of the United States, FAIREY created works of art that included a stylized likeness of then-Senator Obama with the words “HOPE” and “PROGRESS” below the images (the “Obama works”). To create the stylized likeness, FAIREY used as a visual reference a photograph that was copyrighted by the AP.
In 2009, FAIREY initiated litigation against the AP in the U.S. District Court for the Southern District of New York seeking a declaration that the Obama works did not infringe the AP’s copyrights and that his use of an AP photograph was protected by the “fair use” doctrine of copyright law. In FAIREY’s complaint, he alleged that he had used as a visual reference an AP photograph of then-Senator Obama and actor George Clooney taken at an April 2006 National Press Club event. FAIREY’s complaint was factually untrue in describing which image he had used as a reference. In fact, he had used another image from the same event – a tightly cropped image of then-Senator Obama gazing up, which was also an AP photograph.
In order to cover up the fact that his complaint was not true, FAIREY created multiple false and fraudulent documents, attempting to show that he had used the photograph of then-Senator Obama with George Clooney in it as his reference. FAIREY also attempted to delete multiple electronically stored documents that demonstrated that he had, in fact, used the tightly cropped image of then-Senator Obama as the reference. The false and fraudulent documents were produced to the AP during discovery, and the documents that FAIREY attempted to delete were not initially produced to the AP. In May and July 2009, U.S. District Judge Alvin K. Hellerstein, to whom the copyright litigation had been assigned, entered various orders directing that there be discovery in the copyright litigation and setting deadlines for the completion of that discovery. FAIREY disobeyed and resisted these orders. Among other things, FAIREY concealed his destruction of documents; concealed his manufacture of fake documents; suggested to an employee that a back-dated document retention policy be created to justify why documents had been deleted; and coached a witness in the civil case to give an account that FAIREY knew to be untrue.
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FAIREY faces a maximum term of six months in prison and a maximum term of supervised release of one year. He also faces a fine of the greatest of $5,000, or twice the gross pecuniary gain derived from the offense or twice the gross pecuniary loss to the victims.
FAIREY, 42, of Los Angeles, California, will be sentenced by Judge Maas on July 16, 2012, at 10:00 a.m.
Mr. Bharara praised the efforts of Criminal Investigators of the United States Attorney’s Office in the investigation of this case.
This case is being handled by the Office’s Complex Frauds Unit. Assistant U.S. Attorney Daniel W. Levy is in charge of the prosecution.