This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
Last Friday, street artist Shepard Fairey pled guilty to one count of criminal contempt for destroying documents, manufacturing evidence and other misconduct in his civil suit against the Associated Press ("AP").
In the Fairey-AP case, the AP claimed that Fairey and his licensee Obey Clothing committed copyright infringement by using an AP photograph of then-Senator Barack Obama on posters and apparel without crediting or compensating the AP. The case settled last year.
According to the Information filed in federal court in Manhattan last Friday, Fairey alleged in his Complaint against the AP that he had used as a visual reference an AP photograph of Obama and actor George Clooney taken at an April 2006 National Press Club Event. In fact, he used another AP photograph from the same event – a tightly-cropped photo of Obama gazing upwards, which is more similar to the image contained in the Fairey posters.
In order to conceal the fact that his Complaint was false, Fairey created false and fraudulent documents in an effort to establish that he used the Clooney image as his reference, and attempted to delete electronically-stored information showing that he had used the tightly-cropped Obama image. The presiding judge in that action issued two discovery orders directing discovery and setting deadlines, which Fairey disobeyed and resisted. Fairey concealed his destruction of documents and his manufacture of false documents, suggested that an employee create a back-dated retention policy to justify the deletion of documents, and coached a witness to testify to facts that Fairey knew to be false.
The Court scheduled Fairey's sentencing for July 16, 2012. Fairey could be sentenced to a maximum term of six months in prison, a maximum term of supervised release of one year, and a monetary fine.
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