Preet Bharara, the United States Attorney for the Southern District of New York, announced that artist SHEPARD FAIREY was sentenced today to two years of probation for committing criminal contempt of court in connection with litigation against the Associated Press (the “AP”) regarding an image he created to support then-Senator Barack Obama’s presidential campaign in 2008. FAIREY, 42, of Los Angeles, California, was also ordered to complete 300 hours of community service and pay a fine of $25,000 to the United States. He was sentenced by U.S. Magistrate Judge Frank Maas.

According to the Information and other documents filed in Manhattan federal court and statements made during FAIREY’s guilty plea and sentencing proceeding:

In early 2008, to support the candidacy of then-Senator Barack Obama for 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 an AP photograph of then-Senator Obama and actor George Clooney taken at an April 2006 National Press Club event as a visual reference. This claim was untrue. 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 the assertion in his complaint was untrue, FAIREY created multiple false and fraudulent documents that attempted to show 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 demonstrating 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. 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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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.

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