No Jail for ‘Hope’ Poster Artist

     MANHATTAN (CN) – The artist behind the iconic “Hope” poster promoting President Barack Obama will not face jail time for destroying evidence in his copyright battle, a federal judge ruled.
     Click here to read Courthouse News’ Entertainment Law Digest.
     Based on an Associated Press photograph, Shepard Fairey’s image helped propel then-Sen. Obama into office back in 2008, as it became reproduced on hundreds of thousands of stickers, posters and other merchandise.
     Ironically, Fairey’s misconduct during a civil court copyright battle over the image put him in the crosshairs of federal prosecutors serving the same administration that he helped elect.
     Trying to fend off an AP lawsuit, Fairey told the court that his inspiration for the image came from a cropped photograph of Obama and George Clooney.
     In February, the 42-year-old admitted that he destroyed evidence to the contrary when he learned that he was mistaken.
     Friday morning, hours after Obama reaccepted his party’s nomination, a contrite Fairey appeared in federal court again to face sentencing for criminal contempt.
     “I’d like to apologize for violating the court’s trust,” Fairey said. “I’m deeply ashamed that I didn’t live up to my own standards of honesty and integrity.”
     Defense attorney Daniel Gitner told that court that his client, a “self-made artist,” made an unconditional offer to the AP to make up for his misconduct before the government even launched its investigation.
     Fairey eventually paid $1.15 million in a settlement, and the AP collected about $450,000 more from insurers.
     “That’s an extraordinary acceptance of responsibility, and it’s matched by his extraordinary sense of regret,” Gitner said. “Shepard’s confession led to today’s charge.”
     Gitner added that Fairey devoted “literally” a quarter of his time to charity work.
     Several representatives of the organizations he helped, including the American Civil Liberities Union and Coalition for the Homeless, asked U.S. District Judge Frank Mass to hand down a merciful sentence.
     The judge noted these letters in sentencing the California-based artist to 300 hours of community as well as a $25,000 fine to the government.
     The prosecutor, Daniel Levy, insisted that keeping Fairey free “sends a terrible message to would-be spoliators,” using the legal term for those who destroy evidence.
     Judge Maas replied that the Fairey’s “public disgrace” would be enough deterrence.
     “The public is likely to be reminded of your misconduct,” he said, noting the journalists in the courtroom.
     Fairey also must serve two years of probation, which may be reduced after he completes his community service.
     While he has avoided interviews about the case, one of his press handlers distributed a page-long statement after the hearing.
     The final paragraphs include a spirited defense of the fair use of copyrighted images for artistic and political commentary.
     “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,” it states. “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 of 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 issue 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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