Tuesday, February 16, 2010

Revealed: Details of Shepard Fairey criminal investigation

Recently unsealed legal briefs filed by Shepard Fairey reveal that the Los Angeles artist is the "subject" of a federal criminal investigation for "potential violations" of laws prohibiting evidence tampering and perjury. According to a motion filed by Fairey seeking to postpone his deposition in the civil copyright dispute with the Associated Press over the "Obama Hope" poster, a federal grand jury is investigating whether Fairey violated 18 U.S.C. §§ 1512(c) and 1621. Section 1512 makes it a crime to "corruptly...alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, or attempt[] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or...otherwise obstruct[], influence[], or impede[] any official proceeding, or attempts to do so." Violations carry a prison sentence of up to 20 years, though sentencing guidelines usually call for considerably less than the maximum. Section 1621 is the federal perjury statute, which provides for a maximum sentence of five years.
Fairey Motion to Postpone Depo

Fairey admitted last October that he had "submitted false images" to the AP during the civil discovery process "and deleted other images" in an effort to mislead the AP as to which photo he used as the basis for the iconic poster, which became ubiquitous during the 2008 campaign. It was revealed in a court hearing January 26 that Fairey faced a criminal investigation over his actions, but the specifics were not known until his briefs in support of his motion to postpone his deposition were unsealed. On January 27, Judge Alvin Hellerstein denied Fairey's motion to postpone or limit the deposition until the earlier of the conclusion of the investigation or six months.

Fairey indicated that he has been advised by his criminal counsel to invoke his Fifth Amendment right against self-incrimination during the deposition and refuse to answer questions about the submission of false evidence and destruction of relevant material. "If Mr. Fairey is compelled to testify and exercises his Fifth Amendment rights per his criminal counsel’s advice, the consequences of invoking those rights would severely impair his ability to defend this case on the merits — and this Court’s ability to resolve it on the merits," states the brief. Fairey acknowledges that if he does invoke his right to refuse to answer questions, the jury in the copyright case "will be free to draw adverse inferences against him on issues crucial in this litigation, in which he faces counterclaims for bankrupting damages." Again in his reply brief, Fairey warns that his refusal to answer questions at his depo "could lead to crippling liability against him based on adverse inferences rather than the facts."

And in a rather extraordinary passage, Fairey concedes that he likely faces sanctions in the civil case for his admitted wrongdoing and may face indictment:
Mr. Fairey has already admitted engaging in misconduct and accepts that he will face sanctions by the Court at a later stage of this case. But his error, however serious, should not force him to choose between abandoning his Fifth Amendment rights and forfeiting his right to testify in this civil action and to defend the action on the merits. Of course, the Court can impose sanctions upon Mr. Fairey if it deems them appropriate, and the U.S. Attorney can choose to file criminal charges against him.
"But," he argues, "the triple punishment of potentially crippling civil liability — based not on the merits, but on his inability to testify during this particular brief period — would be unjust."

Fairey's brief also reveals that last Nov. 9, federal prosecutors in New York served subpoenas on Fairey, his wife Amanda, and several of Fairey's businesses. The brief also accuses the AP of "play[ing] an ongoing role in encouraging charges against Mr. Fairey, through continuing communications with the U.S. Attorney’s Office that go beyond merely responding to a grand jury subpoena." (The AP's brief, whose arguments prevailed, has also been unsealed but is not available on PACER.)

Update: I now have the AP's opposition brief (whose arguments carried the day) and the supporting documents. The AP's basic argument is that Fairey's troubles are entirely of his own making, and that "[f]or Mr. Fairey now to point to the government's investigation of his own misconduct as grounds for a discovery extension...is truly the definition of chutzpah." A few interesting tidbits from the documents:
  • The AP says that "Neither the AP nor its counsel played any role in initiating [the] criminal investigation.... The AP did not become aware of the investigation until after it had commenced."
  • The AP itself received a document subpoena in the criminal investigation last November.
  • The AP's brief quotes from a declaration from Fairey's counsel (which I have not seen) stating that "[a] resolution with the government is expected to take between three and six months." A "resolution" typically refers to a plea bargain. Of course, there's no certainty that the two sides will reach an agreement.
  • A transcript of a Nov. 10, 2009 hearing in the case sheds light on how Judge Hellerstein plans to deal with Fairey's transgressions. It's clear that Hellerstein views Fairey's misdeeds as "serious," and that he will impose sanctions of some kind. But it seems doubtful that the sanctions will include issue, evidentiary, or terminating sanctions, which would actually affect the outcome of the case: "I want this case to be concluded on the merits and then we'll get into this," i.e., sanctions for Fairey's wrongdoing. And Hellerstein made clear that he plans to sanction Fairey even if the case settles: "[I]f the case is settled in some fashion, I don't want this issue to be settled." Of course, the AP still argues that Fairey's lies and evidence creation and attempted destruction are relevant to the fair use analysis because they demonstrate his bad faith. See Harper & Row v. Nation (fair use "presupposes good faith and fair dealing") and cases cited at p. 24 of the AP's brief.
  • Judge Hellerstein is funny. Explaining his practice of issuing quick discovery rulings (rather than referring such matters to a magistrate judge): "I'd rather be prompt than correct." (Tr. at 18:21.) Who does he think he is, some blogger?


  1. Fairey deserves what he gets. The judge should delay the Civil case, but force Fairey to pay the fees for the AP while the case remains pending. Or bifurcate to get a decision on Garcia's copyright interest, which shouldn't call Fairey into question at all.

  2. I saw Fairey a year ago with Lessig at the NY Public Library. Lessig was his usual "I'm smarter than you so you don't really count" self.

    But Fairey was remarkable and I don't mean that in a good way. He was cocky as if he believed himself untouchable, making clear to the entire room he will take and use anything in our culture whenever he pleases, and sue ANYone who even dares consider using one of his own works or images. It was a piece of performance art worthy of his self-entitled RISD education, but also made him out to be THEE reigning dick of the copyright debate. He's left a trail of very sour tastes everywhere he goes through a nasty combination of ego, condescension and implied legal threat. And after that egregiously egotistical and grandstanding performance that night, if he's locked up and lost forever to our culture I'd say that can only be a positive development in the larger picture. Seriously.

  3. Fairey is a common thief and deserves punishment. He is not an artist.

  4. I shot a short documentary about Shepard Fairey, while he was in Pittsburgh last year and he was friendly, modest, easy-going, well spoken and accommodating. But that's really not the issue here, though many base their opinions on the legal case on their dislike for his person.
    Many art forms take bits and pieces from other art or non-artistic sources, i.e. documentary and video art and reassemble/rearrange/recontextualize them to create new objects, experiences or viewpoints. Fair Use is something you guys should do some reading on, as the loss of his case could put many art forms in peril. Is an artist who assembles mosaics from pieces of reclaimed pottery just a common thief? These reductive, emotional sentiments belong in high school ethics classes and not in any intelligent discourse on the legality of fair use.
    Also, interesting to note: Fairey kept NONE OF THE MONEY from the Obama icon. Every single penny went to the Obama campaign.

  5. 2 points. One, Anonymous @ 5:00am, I've had several interactions with Larry Lessig, and even though I disagree with him on quite a number of issues, I've never gotten the vibe you did from him.

    Second, the whole perjury prosecution puzzles me. I'm totally in favor of the civil trial judge bringing down the hammer. But given that perjury prosecutions are rare, this seems to me to be a relatively trivial case for one. And this is the first time I've heard of 1512(c) being applied to spoliation/fabrication in a civil case, although it's not an issue I've ever researched. I can't help thinking that Fairey is primarily a victim of his own fame here, which may or may not be fair.

  6. Ambulantic said..."Fairey kept NONE OF THE MONEY from the Obama icon. Every single penny went to the Obama campaign."

    How do you know that Ambulantic? Because Fairey said so? He also said that he used a picture of George Clooney and Obama to make the poster.

  7. Shepard might have jacked that image and lied about it, but if you ran into him in public, he;s just a nice normal dude. I gotta say regardless of the cases- he's pretty chill in person.

  8. It so figures that this "iconic" portrait used to such great propaganda effect by Obama & Co. has a checkered past marked by deceit and misdirection. SF isn't an artist, he's a freaking fortune teller!

  9. I dont like fairey, I think he is a douchee, but like what someone here as already stated, thats a moot point. Art is built on art, is it fair to work from photos and repurpose them to make statements and to talk about culture. Fairey should win his case, but the douche should also pay for trying to bolster his case by lying.

  10. I was completely unsurprised by how this has played out; Fairey had been shown to be a thief before any of this even happened. For an overview of how he's made a career out of plagiarism, have a look: http://www.art-for-a-change.com/Obey/index.htm

    I think after all that he must have come to believe he was untouchable. I hope he is proven wrong.

    For those who would want to argue that what he is doing is just what artists do and have always done, please read that link carefully and try to understand the distinctions. What he is doing is is NOT Fair Use, and Fairey injures legitimate artists ability to legitimately do these things. Artists should not be defending him, we should be up in arms against him and the harm he is doing to us all. It's a shame the jury doesn't have to consider those other examples the same way they would consider a past criminal record, because Fairey is a criminal and a repeat offender, no doubt.

  11. Shepard Fairey deserves for the punishment, I am in favor of court decision. He take a shelter of artistism to save himself for punishment.

  12. A lot of people think that Fairey's discovery shenanigans were tantamount to a game changer in terms of how the court will come out. It's clear that discovery abuse is completely different than fair use analysis. And though as much as I think it's the right course of action that the court should find fair use in this case, I don't think it's necessarily open-and-shut fair use on its face because of the effect on the market factor.


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