Tuesday, January 26, 2010

AP: Shepard Fairey under criminal investigation over falsehoods in copyright case

The copyright lawsuit between the Associated Press and Shepard Fairey over the artist's use of an AP photo in his iconic "Obama Hope" poster was interesting enough. But the case now has taken a decidedly strange and ominous turn for Fairey, as it was revealed in court today that a federal grand jury is investigating Fairey over his admitted lies about the photo he copied and the creation and deletion of evidence about which which photo he used. Reports the AP:

A judge permitted the disclosure for the first time Tuesday that the artist known for his Barack Obama "HOPE" image is under criminal investigation, though details of the probe were not divulged.

U.S. District Judge Alvin K. Hellerstein mentioned the grand jury probe in a handwritten note denying a request by a lawyer for artist Shepard Fairey that a hearing relating to a copyright lawsuit they brought against The Associated Press be closed.


The U.S. Attorney's office had a grand jury begin an investigation after Fairey said he erred about which AP photo he used as the basis for "HOPE" and had submitted false images and deleted other images to conceal his mistake.

Meir Feder, a lawyer for Fairey, asked for secrecy in a letter to the judge, arguing that a public hearing "would risk compromising the confidential nature of the criminal investigation."

At the hearing, which was open to the public, Feder asked for a six-month delay in the civil case. He said Fairey had been instructed by his criminal lawyer to invoke the Fifth Amendment if asked questions at a deposition.

Hellerstein denied the request, noting that "this whole thing's going to be wrapped up by the end of spring."


"Credibility is probably the most significant issue," the judge said. "Credibility is a very important factor and you can't go into credibility without going into the destruction of evidence."

Feder disagreed, saying, "Credibility is not the most important issue."

Having the judge declare that "[c]redibility is probably the most significant issue" cannot bode well for Fairey. But the civil copyright case may now be the least of his worries.


  1. Didn't Richard Nixon teach us anything?

    Ben, this scenario is so familiar to me. I appreciate you bringing it to your readers' attention. Over the years, Imageline has been involved with literally hundreds of serious copyright infringement cases. That, quite frankly, has not surprised me in this day and age.

    What has surprosed me, however, is how many people are willing to lie in their affidavits, declarations, depositions, and on the stand under oath. And destroy evidence, as well. A healthy percentage of our opponents try these exact same kinds of techniques to escape liability. 9 times out of 10, we catch them.

    More need to be held accountable for criminal charges in my opinion. Only then will this rapidly circulating theory that "digital piracy is okay" be curtailed. If you think we are having trouble in this country, think what would happen if Fairey lived in Brazil!

    Keep up the wide variety of work, Ben. There are a lot of copyright holders and innocent end-user purchasers and consumers of stolen works who want to hear what you have to say.

    George Riddick
    Imageline, Inc.

  2. I saw Larry Lessig and Fairey discuss just this issue a year ago in February, at the NY Public Library. Lessig, as usual, came across as a slightly condescending smartypants who gets away with it because he really is one of the best minds in the room.

    But Fairey was just loathesome, snotty and self-aggrandizing, fast and loose with the truth and proudly hypocritical. He made clear his self-appointed "right" to appropriate whatever he wished and to sue you personally if you dared a fair use of his own work.

    In a complicated time as this, while we figure out IP ownership and rights, Fairey's above-the-law attitude is part of the problem. Let's hope this federal grand jury investigation becomes part of the solution.


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