Shepard Fairey, the artist responsible for the Obama "Hope" poster that contributed so importantly to Obama achieving the presidency of the United States four years ago, plead guilty today to criminal contempt in charges that came from his manipulating evidence in a lawsuit brought against him for using an AP photograph as a reference for the "Hope" poster.  Shepard Fairey was sentenced to two years of probation and 300 hours of community service.

 

Shepard Fairey has been a special friend to deviantART.  He contributed another one of his famous posters for marriage equality to a contest we held, "Love Unites," that encouraged deviants to remix his poster.  He very generously gave us a layered file with all of the poster's elements.  The results were spectacular and led to a gallery exhibition raising funds for the proponents of laws eliminating same sex discrimination in marriage laws.

Here is a statement issued today by Shepard Fairey about the criminal conviction:

STATEMENT BY SHEPARD FAIREY

FRIDAY, SEPTEMBER 7, 2012

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 therights 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.

My personal view: The AP (Associated Press) should never have pursued its case against Shepard Fairey.  If it felt it had a legitimate business case that the photograph used by Mr. Fairey should have been licensed from it, then it should have asked the Obama campaign to pay the standard "stock" license fee it would have charged any other commercial user.  Instead it intimidated the artist, threatening literally millions of dollars in damages; and never even sued the people who actually made money off of the use.  The AP chose instead to pillory one of our best graphic artists before the courts - - this done by a company that depends entirely on the contributions of artists in order to make money.

Maybe the AP thought it had a good argument but it could still play fair.

UPDATE:

This Journal has sparked considerable interest and argument about the limits of use by one author of another person's work.  This link [link] is to an excellent exposition on fair use between two artists and has a short history of appropriation art with color illustrations!  It is a formal legal document filed by lawyers for the Andy Warhol Foundation in a controversial case.  Warning: some of the images are NSFW even though filed in a federal court in New York.