Obama Administration Demands 'Hope' Artist Shepard Fairey Serve Prison Time

The artist behind the iconic Obama poster manipulated evidence in a civil lawsuit against the Associated Press.

During his acceptance speech at the Democratic National Convention on Thursday, President Barack Obama reclaimed "hope," mentioning the word 30 times and telling viewers, "I have never been more hopeful about America."

Meanwhile, artist Shepard Fairey, who famously took Obama's "hope" message four years ago and created an iconic image, has a different sense of aspiration these days: He's hoping to avoid prison.

A New York judge is set to sentence Fairey for his role in destroying and fabricating evidence during his copyright fight with the Associated Press over the "Hope" image. The artist is getting no help from the Obama Administration's Justice Department, which on Tuesday strongly urged Judge Frank Maas to give Fairey jail time. On Thursday, Fairey's lawyers responded, saying that Fairey already has paid a penance for his crime.

After the election of Obama, Fairey's iconic "Hope" image that was used on posters and t-shirts came under scrutiny when the AP objected to the use of one of its photographs as the basis of the artwork.

Fairey rushed to court, filing a lawsuit against the AP to vindicate his rights. At first, the case appeared destined to set precedent on the issue of "fair use," specifically what rights artists do or don't enjoy to transform copyrighted material. Other cases, particularly photographer Patrick Cariou's lawsuit against artist Richard Prince, have since explored the boundaries of "appropriation art." A big appellate decision in the Cariou v. Prince case is coming soon, and the Fairey case never got to any important rulings because it was sidetracked over issues of evidence spoilation.

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In order to cover his tracks about which image he used as the basis of "Hope," Fairey doctored evidence. As he later admitted on his blog, he "submitted false images and deleted other images" in the case. After he manipulated the evidence and was caught, his attorneys at Stanford Law School's Fair Use Project abandoned him.

In early 2011, Fairey settled his dispute with the AP. The artist agreed not to use more AP images and agreed to share rights to merchandise. Recent documents also indicate that Fairey paid more than $1.6 million to the AP.

Earlier this year, Fairey pled guilty to one count of criminal contempt for, in the government's words, going to extreme lengths to obtain an unfair advantage in his civil lawsuit.

Now, he's facing about six months in prison. The Obama administration definitely wants him to serve it.

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Fairey says he only received about $150,000 in profits from his work, with the rest going to charity. The government contends that the AP's forensic accountant put the number closer to $1 million but says that this misses the point.

According to a sentencing memorandum filed earlier this week, "´╗┐The Government notes that, prior to the works, the defendant was a well-established artist. However, the works greatly contributed to the defendant’s reputation as an artist and made his art known to a much wider audience than ever before."

It is pointed out that the "Hope" image became so famous that Fairey was selected to create the official poster of Obama's inauguration, that his original image got him into the Smithsonian Institute's National Portrait Gallery, that he was commissioned to do cover art for Time Magazine's Person of the Year in 2008, and that his companies "greatly increased their profitability."

In 2007, his three ventures had combined gross receipts of about $3 million. By 2009, that had more than doubled to more than $6 million.

"A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct in which the defendant engaged," the government tells the judge. "The message sent by a sentence without any term of imprisonment is that, if a party who engages in spoliation and fabrication of evidence does not get caught, it unfairly gains. And, if it does get caught, then it will merely be required to remediate the effects of its conduct with no marginal sanction."

In reply, Fairey's lawyers say the government hasn't presented any information to conclude that this case is "unique," and lists for the judge a long line of other cases where what occurred "was more egregious than the spoliation that occurred here."

Those other cases lack the publicity this one got, of course. Nevertheless, Fairey's attorneys add that the artist had already been penalized appropriately during the case with the AP.

"In fact, Shepard's actions so weakened his case that he settled what he believed was a meritorious matter on unfavorable terms that included 'sanctions,'" says his side's own memorandum to the judge.

Fairey's side argues that the fine shouldn't be more than $1,000. A decision should be coming soon.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner