Shepard Fairey, 42, the Los Angeles street artist best known for the creation of the Obama ‘HOPE’ poster for the 2008 presidential campaign, was ordered by a court in Manhattan to do 300 hours of community service on Friday, for criminal contempt. The judge however, spared him from serving a jail sentence. Fairey, shook his head and said only; “OK” as the U.S. Magistrate Judge, Frank Maas warned him not to commit any crimes, during his two years of probation. He was also ordered to pay a $25,000 ( £15,600) fine to the U.S. government. During the summing up remarks, in a magistrate’s court room. Prior to the sentencing Fairey himself declared his decision to fabricate evidence in the civil lawsuit, brought against him by The Associated Press new service,in 2009, the; “worst thing I’ve done in my life.” He also apologised. “I am deeply ashamed and remorseful that I didn’t live up to my own standards of honesty and integrity,”
Judge Maas stated that the “Sentence needed to send a message to others who might destroy or fabricate evidence in a civil case and the consequences of covering up is far worse than telling the truth”. He also pointed out Fairey’s; “considerable charity work over a long period of time mitigated the need for prison on a misdemeanour charge that carried a maximum potential sentence of six months”. “Punishment has been and will be in the form of public disgrace,” the judge also remarked.
The sentence was publicly released after Daniel W. Levy, a posturing Assistant U.S. Attorney, went on a tirade of self motivated verbal gobbledygook, that summed up his opinion stating, that not imposing a custodial prison sentence for Fairey would send “a terrible message” to others who might tamper with evidence. He pointed out that Fairey personally paid only $1.15 million of the $1.6 million owed to the Associated Press in the settlement of the civil case. Insurance covered the rest. Fairey in the autumn of 2009 admitted liability that he tampered with evidence after basing the Obama poster on a 2006 Associated Press photograph. He had told the court that he based the image in the poster on a separate photograph, when he had based it on a nearly identical image. Lets hope Mr Levy’s grandstanding doesn’t lead to aspirations of a political future.
Court records showed, that moneys earned at the three companies Fairey controlled doubled from roughly $3 million in 2007 to $6 million in 2009. This was the direct result of being chosen to design the official poster of Obama’s 2009 inauguration, and duly commissioned to create the cover of Obama’s ‘Person Of The Year’ for Time magazine 2008 issue. The cover was prominent in an exhibition at the Washington’s National Portrait Gallery.
The original case rested on Fairey’s use of an image taken from a photograph by an AP news photographer. The Barack Obama “HOPE” poster was fashioned from this image. Claims between the news service and companies including the international chain Urban Outfitter, that sold merchandise using the artist’s image were successfully contested in a civil court case last year.
The dispute over an AP photograph taken in 2006 when Obama, then a U.S. Senator was originally thrown out of court. In 2009, AP brought a civil action to court. Fairey counter sued AP, seeking a court declaration that he did not violate AP’s copyrights when he made the Obama image. The image used in the Fairey piece show a purposeful looking Obama gazing upward, with the caption “HOPE.” It was unclear how a dismissal of claims between Fairey and the AP would affect the legal use of the original image. Arguments over whether Fairey altered the original image of Obama enough that he did not infringe on the AP copyright was always the question. It is now clear that the photo used was a lesser know frame from the same series of photographic negitives.
This case highlights the argument over intellectual property vs physical source material.”I respect the work of photographers, as well as recognise the need to preserve opportunities for other artists to make fair use of photographic images,” Fairey said, in a statement. I look forward to working with photos provided by AP’s talented photographers. I respect the work of photographers, as well as recognise the need to preserve opportunities for other artists to make fair use of photographic images. I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP’s talented photographers”.
AP doesn’t seem to understand in principle that photography from newspapers have been used by artists including Degas, Picasso and Rauschenberg since the invention of the medium. The nature of the photograph has been contextually altered by Fairey’s in a treatment of the photo. This change, in the way the photo was used and perceived, has altered the original, transforming a news photograph into a work of art.. The argument has always been compared to Andy Warhol’s use of Marilyn Monroe and Elizabeth Taylor images not to mention the Campbell’s and Coca Cola trademarks. Are they works of Art or are they infringing copyrighted photographs and trademarks? This opens up a Pandora’s box of claims for the future. Photo: Shepard Fairey stands in front of one of his “Hope” posters. Credit: Jay L. Clendenin