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January 26, 2010 7:33 PM

Artist Fairey Faces Criminal Probe Over Lies in "Obama Hope" Case

Posted by Ross Todd

Shepard Fairey, the creator of the "Obama Hope" poster, faces a criminal investigation into his behavior during a copyright dispute with The Associated Press over the photo that he used as the source of his iconic image. The Am Law Daily learned of the probe Tuesday afternoon while attending oral arguments before federal district judge Alvin K. Hellerstein.

Fairey's Jones Day lawyers had asked Hellerstein to close the courtroom for a scheduled hearing on motions that had been filed under seal, but the judge refused. In their sealed motion, Fairey's lawyers were asking the judge for a six-month extension of the discovery deadline in Fairey's copyright suit against The AP--in part, in turns out, to allow Fairey to delay his deposition in the face of the criminal investigation. 

In October, Fairey admitted lying about which AP photograph he used as the basis for his Obama poster--and to fabricating and destroying evidence to cover up the truth.

When Hellerstein asked Meir Feder of Jones Day whether he could promise that Fairey would not need to assert his Fifth Amendment rights at the end of the proposed six-month delay, Feder responded: "I can't promise you his intentions."

Hellerstein ruled from the bench that due to the time sensitivity of the copyright claim, he was denying Fairey's motion for an extension. "Everything in this world is time sensitive," Hellerstein said. "Especially news. Especially photographs."

Tuesday evening, AP spokesman Paul Colford said in a statement that The AP had received a grand jury subpoena in connection with Fairey's admitted misconduct.

"The Associated Press is very pleased that Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York, has denied Shepard Fairey's motion for a protective order to stay Mr. Fairey's deposition, or alternatively to limit the scope of Mr. Fairey's deposition, pending the outcome of a criminal investigation regarding his admitted wrongdoing in this case," Colford said in the statement.

In October, one of The AP's lawyers in the matter, Dale Cendali of Kirkland & Ellis, told sibling publication The Am Law Litigation Daily that Fairey's "lies about which photograph he used go to the heart of the case." Hellerstein seemed to echo that sentiment Tuesday afternoon. "It's a fact case," he said at one point during the hearing. "Credibility is probably the most important issue."

The copyright case began in February when Fairey sued The AP, asking for a ruling that his Hope image did not infringe the wire service's copyright of an Obama photograph taken by AP photographer Mannie Garcia. Garcia himself has asserted a copyright claim in the case.

The artist's Jones Day lawyers did not return a call for comment. Contacted by The Am Law Daily, Fairey spokesman Jay Strell directed us to Daniel Gitner of Lankler Siffert & Wohl. Gitner, in turn, said he represents Fairey, but declined to comment further.

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