'Hope' Artist Shepard Fairey Escapes Jail Time

Judge resists call to send a message, ordering probation, community service and a fine for famed artist.
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Despite the U.S. government's pleading with a judge that jail time was necessary, a New York judge has refused to sentence artist Shepard Fairey to any jail time for manipulating evidence in his civil lawsuit with the AP over the iconic "Hope" image.

Instead, the judge ordered two years of probation, 300 hours of community service, and a $25,000 fine.

Fairey battled the AP over copyright to the image of President Barack Obama that formed the basis of his work. He ran into trouble for destroying and fabricating evidence and settled the litigation. More details here.

Earlier this week, the government strongly urged a stiff sentence, telling a judge, "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."

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But Fairey argued that his case wasn't unique and that he had already paid sanctions through a settlement with AP.

"After spending a great amount of time, energy and legal effort, all of us at The Associated Press are glad this matter is finally behind us," says Gary Pruitt, president and CEO of AP. "We hope this case will serve as a clear reminder to all of the importance of fair compensation for those who gather and produce original news content."

He admits his wrongful acts yet expresses the firm belief that he would have prevailed in litigation had it continued. Here's his full statement:

"I accept full responsibility for violating the Court’s trust by tampering with evidence during my civil case with the Associated Press, which, after my admitting to engaging in this conduct, led to this criminal case by the Southern District of New York. I accept the Judge’s sentence and look forward to finally putting this episode behind me. My wrong-headed actions, born out of a moment of fear and embarrassment, have not only been financially  and psychologically costly to myself and my family, but also helped to obscure what I was fighting for in the first place— the ability of artists everywhere to be inspired and freely create art without reprisal.

I entered into litigation with the AP because I believe in Fair Use and I wanted to protect the rights of all artists. The Obama HOPE poster was created and distributed with a belief in what Obama could do for this country and my hope that I could inspire others to thought and action. Making money was never a part of the equation. As funds came in, I used them to create more posters and stickers and make donations to the Obama campaign. Most of the remaining proceeds were given to causes I support and believe in from the ACLU to Feeding America.

I believed, and still believe, that I had a very strong Fair Use case, which I could have prevailed.  There was no intent to deceive on my part at the outset. When I discovered that the photo I had referenced was indeed the one the AP argued it was and not the one I thought I had used, I was embarrassed and scared to admit they were right and I was wrong even though it would not have had a material bearing on my case. Not amending the record was a big mistake and short-sighted.  My actions damaged my ability to proceed effectively with my case and allowed the AP to focus on my credibility. I regret my actions every day and those who know me well know it is out of character.

Throughout my artistic career I have seen art as a powerful tool of political speech and social commentary and I try to use my art to stimulate a constructive dialogue. I believe in intellectual property rights and the rights of photographers, but I also believe artists need latitude to create inspired by real world things, just as news organizations need to use exception to copyright in order to report the news.  The ability for an artist to creatively and conceptually transform references from reality is essential to their artistic commentary on the realities of the world. If artists find that freedom curtailed, it is not just artists, but all of us, who will lose something critically important.

The damage to my own reputation is dwarfed by the regret I feel for clouding the issues of the Fair Use case. I let down artists and advocates for artist's rights by distracting from the core Fair Use discussion with my misdeeds. The decision today will, I hope, mark an ending to what, for me, has been a deeply regrettable chapter. But the larger principles at stake—Fair Use and Artists’ Freedom—are still in jeopardy, and I hope we will remain vigilant in depending on the Freedom of Expression."

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