Shephard Fairey Is Fined and Sentenced to Probation in \'Hope\' Poster Case

September 7, 2012, 11:46 am

By RANDY KENNEDY

The artist Shepard Fairey, whose 2008 poster of Barack Obama became an optimistic symbol of the last presidential campaign before spawning a bitter copyright battle with criminal overtones, was sentenced in federal court in Manhattan on Friday to two years of probation and fined $25,000 for tampering with evidence in the case.

Government prosecutors had argued that Mr. Fairey should serve time in prison for his actions. In February he pleaded guilty to a criminal contempt charge after admitting that he had destroyed documents and fabricated others to try to conceal the fact that he had used a particular Associated Press photograph of Mr. Obama as the source of his well-known “Hope” campaign poster.< /p>

In a statement issued after his sentencing, Mr. Fairey, 42, said, “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.”

Mr. Fairey sued The Associated Press in 2009 after it contended that he had infringed on the copyright of one of its photographs in creating the poster. In his suit Mr. Fairey claimed he had used a different photograph, but later admitted that he had been mistaken and had tried to cover up his mistake. At the time he pleaded guilty, he said he was “ashamed” of his actions.

When the case began in 2009, Mr. Fairey argued that his use of Associated Press imagery constituted fair use under copyright law. But the civil lawsuit was settled before that question was decided, and the two sides agreed to financial terms that were not disclosed.The parties also agreed to share the rights to make posters and merchandise bearing the “Hope” image. Mr. Fairey maintained that he had never personally profited from sales of the image, a contention The A.P. disputed.

Mr. Fairey has become one of the best-known practitioners of a guerrilla-style street art that emerged from the graffiti scene but has expanded well beyond paint to include a wide variety of techniques and materials. He made his name plastering buildings with fake-advertising stickers and posters showing an ominous, abstracted image of the wrestler André the Giant along with the word “Obey.”

Until the settlement between Mr. Fairey and The Associated Press, the case was watched closely as one that might define more clearly the murky issues surrounding the fair-use exceptions to copyright protections. One of the central questions was whether Mr. Fa irey's creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama's campaign, constituted a “transformative” use of the photograph, a use that is allowed under the law so that creative expression is not stifled.

In a statement Gary Pruitt, the president and chief executive of The Associated Press said: “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. 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.”