NEW YORK — The creator of the Barack Obama “HOPE” poster pleaded guilty Friday to criminal contempt, saying he made a “terrible decision” in 2009 to destroy some documents and fabricate others in a civil lawsuit pertaining to The Associated Press photograph he relied upon to make the poster.
Shepard Fairey entered the plea in federal court to the misdemeanor charge, which carries a maximum potential penalty of up to six months in prison. Sentencing was set for July 16.
“Violating the court’s trust was the worst thing I have ever done in my life,” said Fairey, 42, of Los Angeles. “I was ashamed as I did all these things, and I remain ashamed.”
The criminal case originated after the artist acknowledged he had fabricated information in a lawsuit he brought against the AP in February 2009. The lawsuit sought a court declaration that he did not violate AP’s copyrights when he made the Obama image. The AP countersued, saying the uncredited, uncompensated use of its picture both violated copyright laws and was a threat to journalism.
That case was settled last year.
U.S. Attorney Preet Bharara said in a statement Friday that Fairey “went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation, creating fake documents and destroying others in an effort to subvert the civil discovery process.”
“The justice system — civil and criminal — depends on the integrity of lawyers and non-lawyers alike to follow the rules,” Bharara said. “Those who break the rules risk sanctions, including, in certain cases, criminal prosecution.”
Fairey told Magistrate Judge Frank Maas that when he created the Obama poster in January 2008, he believed he was basing it on a cropped version of a photograph he had seen of the then-Illinois senator with actor George Clooney in front of an American flag at a public event. He said it was only a few days after his lawsuit was filed, when he saw a blog comparing the Clooney picture with another AP photograph, that he realized the image he had used was a different AP picture of Obama taken at the same event.
He said that before meeting with his lawyers six weeks later, he deleted the files showing he had used the Obama photo that did not include Clooney and printed documents to make it appear that he had used the picture with Clooney in it.
“I showed my lawyers the fake documents as I described my artistic process and told them that I had used the Clooney photo as a reference for the Obama ‘HOPE’ poster,” Fairey said.
“I was and am ashamed that I had done these things, and I knew I should have corrected my actions, but as time passed I found it more and more difficult to admit my actions,” he said.
He said he continued to hide the truth for months, even arranging for a witness to support his false claim in a deposition with lawyers, before one of his employees searching for documents for his attorneys came across the files he thought he had deleted.
“I immediately confessed what I had done to my lawyers, and then to my wife, employees and friends,” he said. “Days later, I authorized my lawyers to write a letter to the court and the AP explaining what I had done.”
Assistant U.S. Attorney Daniel W. Levy told the judge that the government plans to ask for “some term of imprisonment” at sentencing.
Maas rejected the government’s request that bail be set at $100,000 for Fairey, saying he could be released on his own recognizance because the risk that he would flee was “extraordinarily low.”
The AP and Fairey announced last year that they had settled their copyright infringement claims against each other and would work together in projects using the news agency’s pictures. Fairey agreed not to use another AP photograph in his work without obtaining a license, and the two sides agreed to share the profits of posters and merchandise bearing the “HOPE” image.
A financial settlement also was reached, the terms of which were not disclosed, though Fairey said Friday during his plea that he “paid the AP an amount that I believe made it whole for the harm associated with my spoliation and fabrication of evidence.”
AP President and CEO Tom Curley said in a statement: “Mr. Fairey started this case by suing the AP over copyright fair use issues. The AP never expected the case to take the turn that it did. The AP hopes that some good may come of this, by alerting judges and parties to the possibility that fake evidence may exist.”