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February 24, 2012 3:40 PM

Artist Fairey Guilty of Contempt In Case Tied to Copyright Suit Over Obama "Hope" Poster

Posted by Ross Todd

Shepard Fairey pled guilty Friday to a federal charge of criminal contempt for destroying documents, fabricating evidence, and engaging in other misconduct amid litigation over his use of an Associated Press photo to create one of the 2008 presidential campaign's most iconic images.

Fairey's plea came a little more than a year after he and the AP settled the lawsuit the artist brought against the news organization in a peremptory strike in 2009. The basis of Fairey's suit was his claim that his reliance on the photo at issue as the basis for the so-called Obama "Hope" poster was protected under the fair use provisions of copyright law.

The AP countersued, and during discovery its legal team at Kirkland & Ellis uncovered evidence that in addition to incorrectly identifying from the outset which photo he had used to create the poster, Fairey had destroyed files on his computer and created new ones in attempts to cover up that fact.

After Fairey admitted to the evidence tampering, or spoliation, his original legal team--led by Anthony Falzone, executive director of Stanford University's Fair Use Project, and Joseph Gratz, of Durie Tangri--quit the case. They were replaced by a new team led by Jones Day partner Geoffrey Stewart and a pair of Harvard Law School professors.

Though Fairey and the AP settled their dispute in January 2011--actually agreeing as part of the deal to partner to sell the Obama posters and make new Fairey images based on AP photos--federal prosecutors continued their investigation into the artist's actions. On Friday, that probe wrapped up when Fairey pled guilty to a single count of criminal contempt before Manhattan federal magistrate judge Frank Maas. He faces up to six months in prison, a year of supervised release, and a fine of the greatest of $5,000, or twice the gain from his offense or twice the loss to the victims.  

In a prepared statement Manhattan U.S. attorney Preet Bharara said Fairey "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."  

Added Bharara: "The justice system--civil and criminal--depends on the integrity of lawyers and nonlawyers alike to follow the rules. Those who break the rules risk sanctions, including, in certain cases, criminal  prosecution." 

AP president and CEO Tom Curley issued the following statement: "Mr. Fairey started this case by suing the AP over copyright fair use issues. The AP never expected the case to take the turn that it did. The AP hopes that some good may come of this, by alerting judges and parties to the possibility that spoliation may exist."

The AP was represented in the underlying civil litigation by a Kirkland & Ellis team led by partners Dale Cendali and Claudia Ray. Both Cendali and Ray were out of the office Friday and not immediately available for comment. 

Fairey, 42, of Los Angeles, is set to be sentenced by Maas on July 16. A spokesman for Fairey says he's being represented in the criminal case by Daniel Gitner and Abigail Rosen of Lankler Siffert & Wohl. They did not immediately respond to requests for comment.

 

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