Shepard Fairey sentenced to probation

 Images 2009 02 05 Arts Obamaab

Shepard Fairey was sentenced for two years' probation for tampering with evidence during his copyright battle with the Associated Press. From CNN:

"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," Fairey said in a written statement. "I accept the judge's sentence and look forward to finally putting this episode behind me."

Federal prosecutors said Fairey, 42, lied about which AP image of Obama he used as inspiration for the posters, which were stamped with the words "Hope" and "Progress."

"Obama poster artist gets probation for evidence tampering"


  1. Sad story. I still think Fairey had a good case for fair use but there was no excuse for him to lie to the court in that way.

    1. Many times corporations break a … law, pay a fine and consider it a cost of doing business. Wash, rinse, repeat. The people making the decisions to commit the crimes are never held responsible.

      For the record, I appropriated the above from a comment on the Wells Fargo post. Note that Pescovitz’s post fails to mention neither the 1.6 million dollars Fairey paid AP to settle, nor the 25 thousand dollar fine he is required to pay as part of his sentence. Other articles note that prosecutors were seeking jail time, since the charge in question merited up to six months of prison, which didn’t happen.

      Business as usual.

      1. Folk art? The problem is that Shepard Fairy has predominantly appropriated images from left wing, radical and even revolutionary movements in such a blatantly insincere way. The incongruous shoe horning of Lenin, Malcolm X and Angela Davis next to Sid Vicious, Black Sabbath and a US President in order to flog jewelry, clothing, laptop cases, key rings and anything else an image can be plastered onto.

        1. Just because you don’t get or like it doesn’t mean it’s not legit. Appropriation is a huge part of the long history of folk art, it predates copyright by millenia. Imagine there was only one depiction of Horus.

          1. I didn’t make any aesthetic judgments about the work and I don’t have a problem with appropriation. What’s to get?  Leonard Peltier and the Zapatista Movement give a radical sheen to a hack flogging swimwear and jeans. Maybe Shepard’s simple minded and naive rather than just mercenary. For all I know he probably writes letters to political dissidents around the world languishing in prison enclosing screen prints of Ice-T to cheer them up. 

          2. I believe the word you’re looking for is “populist.”

            And yes you do have a problem with appropriation when you focus too much on the word “appropriate.”

            Really, though, you’re drifting awfully close to the whole “jazz is degenerate” thing.

    1. And so what? Why can’t these people see that having a respected artist riff on your intellectual property is an honor, not theft?

      Warhol did this all the time and nobody sued him.

      1. “Participating in folk art” and “riffing” are fine, and Warhol was a real artist who could actually draw. Fairey, though, seems to do little other than copy other people’s work. To be a “respected artist” you need to have more than a scanner. 

          1. Probably more than you have. I also have an Andy Warhol book that he autographed and inscribed to me, and in which he also drew a Campbell’s soup can. So I am not unfamiliar with modern art.

        1. Why is it necessary to place any such qualification on someone in order to consider them an artist?  The job of an artist is simply to express something, anything really no matter how abstract.  Why would you feel necessary to place any qualifications whatsoever on them?
          That statement is as preposterous as saying that to be an artist you need to have more than a camera (which is just a disembodied scanner, really).

          1. However, “expressing” something using the same exact images or words that someone has used before isn’t really expression, it’s parroting and mimicry.
            Expression is symbolization, not cloning.

            It is also the job of an artist to create something new and relevant when using another author’s  images or words, as well as to give credit where credit is due.

            What you may have missed in Gimlet’s statement is that yes, an artist does need to have more than a scanner, camera, or whatever mechanical aid they put to use. The artist must always have imagination, which leads to true expression.

          2. This is exactly why it doesn’t matter who takes your work without permission. Some artists will make better derivative works than others, but it doesn’t absolve them from the responsibility of getting permission to use someone else’s art. “I took a picture you made and incorporated it into a picture I made, but you’re not allowed to be upset about it  because my picture is pretty” is not a valid argument.

        2. Fairey is a hell of a lot closer to ‘art’ than what ends up in a lot of art museums these days. Fuck, I saw a BLANK PIECE OF CANVAS in one of those art museums in NYC not too long ago….

        3. What’s worse is that he lied about it and destroyed evidence which is essentially admitting that he copied an idea. He could have asked permission.

          1. True.

            What if I took this Boing Boing page, changed the background color, added a photoshop filter,altered the fonts, without any other significant artistic interpretation, and then sold it as a poster or art, or made it a web page, where I might make a nice profit and I insist that it was all only my ideas, with no credit; Is that okay?

          2. Without credit or a link? For profit, commercially? If so, they are not accepting terms of use. And if that doesn’t matter, why post it?

          3. You mean he copied ‘an image under copyright protection’.
            You can do all you want with ideas. It’s specific images, words, melodies, etc. that you can’t mess with.

            You’re right though, he could have asked permission.

          4. Yes, you are right. But I think what is forgotten in this story is that there was another artist. I know that AP is a stuffy buttoned-up organization that makes money, so people like to look at this as some David and Goliath story, and AP is The Man. But what if the AP photographer owned his own copyright as an independent?

            Sometimes residuals on use of photos are what keep photographers alive. Or even a mention of their name might promote more work for them in the future. In that case, if he copyrighted his own work and made less money than what AP does, would anyone have more empathy for his plight and understanding of his rights?

            Suppose I took the Hope poster, turned it upside down and made it blue, adjusting the image slightly, and made it a statement for Republicans (I’m not a repub) and sold it to people on the right to hang in their communities. Do you think that the artist would sue, if he had not taken the image from someone else to begin with?

            Copyright laws are insane in some ways. In other ways, they keep some money in the pockets of the “little guy” What if AP had taken the image from the photographer, sold it to newspapers, without any release from the photographer, made money on it, but gave no credit or money to him. Would people be more sympathetic to his ownership, hard work, time and right to profit from his own image? Or does he not matter because he doesn’t call himself an artist?

        4. I completely Agree with Gimlet, everyone should make all aspects of there art in the same way the Warhol designed the Campbells soup can. If another artist are designer did part of the work your a thief. 

        5. This image isn’t scanned. The axis of the head is skewed differently from the photo. The size of the ears, lips, shape of the head, all of it… the forms are completely different as is the light source. For a ‘reproduction’, this is a poor one. An interpretation – a great one. I have no doubt that he used this photo for reference, but he didn’t merely “copy” it as you are suggesting. 

      2. Did Mr. Warhol license the original photograph for this series?  Seems unlikely, but I couldn’t find an answer.

        1. Did England ask permission before colonising North America?

          Excuse the hyperanalogy, but just because it was done a certain way in the past doesn’t mean that it was done the right way.

          1. I don’t believe the aboriginals asked permission before colonising North America, either.

            Just because an objective image of a real scene can be ‘owned’ in our current world doesn’t mean it is right.

      3. “having a respected artist riff on your intellectual property is an honor” Um, no. I don’t care how respected (by whom?) the artist is, if he takes and uses my work without asking, he’s at the very least an asshole.

    2. Much of the “plagiarism” on that page was remixing imagery that only made sense if you understood its original context, so he clearly wasn’t trying to pass himself off as the guy who drew it all in the first place.

      You could argue copyright violation maybe, but “plagiarism” (as that site’s author describes it) is a bit of a stretch to say the least.

      1. Sampling others’ casseroles into your own dish at the potluck doesn’t really mean you brought your own food.

    3. I’m no art student, nor Shepard Fairey apologist, but that article is utter drivel.  Nonsensical drivel.  It is not even worth my time commenting on it point by point.

      1. NU UH he copied that scrambled eggs edging shit from US dollar bills. FRAUD COPIER!! Also it’s a woman wearing a skirt or dress and holding things, so it’s totally ripping off Frederic Bartholdi.

    4.  From a painter’s point of view, I also feel that you could take the argument further…that Fairey and many other “artists” of today don’t even really understand what actually constitutes the limits of  “reference” when using photographs.

      Checking the angle of the light source, leg placement for running animals, wave patterns in a relatively placid body of water, etc. These are sound reasons for referencing a SINGLE photograph. Copying, tracing, scanning, and projecting (for the purpose of tracing), are not sound reasons.

    1. That’s hardly unusual, especially for celebrity artists. Andy Warhol’s studio was nicknamed “The Silver Factory” (or less formally just “The Factory”) and in some ways he really ran it like one. Many of his paintings and prints were produced by uncredited assistants. He even hired an impersonator to do speaking engagements so he wouldn’t have to show up himself.

      1. He didn’t own it though. Look at his reaction here. He knows it’ll hurt his rep as an “outsider”. 

        1. As a general rule, you should turn your back and run whenever you see “journalists” from TMZ. Don’t interact with them in any way. Just run.

      2.  But that was Warhol’s point. Rehashing commercial and pop imagery as art. He never denied he copied things that were created to make money (soup can art) and which he, himself, reinterpreted, mass produced and made money on. It was a statement on culture. He made art and was a performance artist and he made money: full circle.

          1. He destroyed evidence that he copied the AP photog’s image. He tried to preemptively sue the AP. That is a denial.

          2. @Wren_ish:disqus : And I’ve already stated he deserves punishment for that. Evidence tampering is a whole different issue than “fair use.” I was speaking to the broader accusations people were making about his work.

          3. smallchange goes on and on about the art, and then when their arguments are shredded retreats to “well he destroyed evidence,” which has fuck-all to do with art and everything to do with The Man.

  2. And the image should be changed to ‘Hopeless’.  Instead of pursuing war criminals, torturers, and bankers, the DOJ, under the direction of the Assassinator, chooses to prosecute athletic dopers, medical marijuana operators, copyright violators, and of course, Fairey, because, well, those crimes are really deep and important, and no one should be above the law (except the Killer-in-Chief, who gets to decide who is or who is not going to live that day, and who’s more deeply involved in the murder of innocent civilians than he is in the affairs of the country he’s ostensibly in charge of).  You can kill whoever you want, torture them, detain them indefinitely without charges, rob them blind, and you can still get away with it, because that’s in the past and it would be too hard to actually do something about it.  But God help you if you so much as think of abrogating court rules or perverting the cause of ‘justice’, the DOJ will throw the book at ya.  

      1. Where not otherwise specified, this work is licensed under a Creative Commons License permitting non-commercial sharing with attribution. Boing Boing is a trademark of Happy Mutants LLC in the United States and other countries.

        Was he selling posters? Did he credit the original artist?

  3. “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.”

    When is the World going to rise up and demand copyright reform that isn’t a euphemism for “copyright extension”?

  4. He definitely added something of value in his poster but that wasn’t enough for him, he tried to deny the obvious, essential contribution of the original photographer. He was greedy.

    What’s with all the moaning in the comments about copyrights being for too long?  Even under the shortest copyright terms ever in this country, that picture would have been under copyright. 

  5. Isn’t the defendant in a court case exempt from giving information that would harm himself and thus exempt from telling the truth? That’s how it works in a lot of countries, I think.

    A witness, on the other hand …

    1. A criminal defendant has a Fifth Amendment right not to incriminate himself; there is also a Fifth Amendment right not to be compelled to incriminate one’s spouse.

      This trial, though, was a civil case; because civil cases do not “incriminate” anyone — and because the potential penalties do not include loss of life or liberty — there is no Fifth Amendment right not to provide evidence in a civil case.  All parties in a civil case are subject to discovery requests and sworn testimony.

  6. I think what Fairey learned here is that the logic of a bar room conversation actually holds no water in the court of law. The things we say to each other and even sometimes believe true are simply rationalization and bluff. The art world, in particular, loves it some posturing and bullshit. It just doesn’t fly when something real is at risk.

  7. This is bullshit, the only approval he needed was the President’s, who is the only one that “owns” a photo of himself. And at that rate he could just pardon Shepard anyway. So this whole thing is just a load of I.P. ass wash. It’s getting to the point now where if I took a photo of a Cello and didn’t check all 1,000,000,000,000,000+ other photos of Cellos to make sure I had it tilted at 47.98 degrees on the z axis instead of 47.99, I could get sued for ripping off someone’s photo even though I took it. THE POOCH HAS BEEN SCREWED PEOPLE!

    1. Sorry, being an artist, a photographer, and photojournalist, who must understand light, composition, speed, and deal with whatever crappy conditions there are while shooting an image, and yet selecting an expression, cropping the image, catching something unique, going through security, waiting hours, etc. I take issue with this. If someone writes an eloquent story about Obama, do they not own their words? Someone else should be able to hijack the beauty of the underlying prose with a different font and that makes it okay? And what about music? Should someone simply take Bruce Springsteen’s music, set it to a different tempo with the same exact words, and it’s okay for them to claim it as their own? Let’s pretend no one knows Bruce, he’s a nobody, but everyone knows this “respected” artist, is it okay that the artist steals everything from the unknown person and profits? I have taken my own images and altered them in “pop art” form. But they are my creations.

      What the artist did was take an EXACT copy of the photograph with no credit and no permission and with no offer for compensation, he used it to sell posters. Without the AP photo, there would be no Hope poster. He selected the image based on the exact expression that someone else captured.

      I have not had a “respected” artist steal my work, but there have been instances where people have  tried to use my work to sell themselves or otherwise make money from my work. How is that okay? And what is so difficult about respecting someone else’s work,  asking permission or paying a use fee?

      Guide UI

      I assume you wouldn’t care if I used your name now.

      1. Ha! Thanks for the BIG UPS! :) I don’t own the letters D,E,G,I and U so it’s not an issue for me. I sell software so I know that progressing means regularly improvising, not trying to own a piece of existence. A man just can’t do that. He can try, but he’s gonna be busy doing things other than what he’s passionate about until he’s dead, at which point he loses it anyway. What you’re experiencing is an antiquated instinct called greed, take a deep DEEP breath, it’ll pass. Or you can hold on to the past if you want but I’m gonna go keep creating new stuff for a new world! ;)

        1. I am hardly a person worthy of being in the category of greed. I am a humble artist with the best intentions, who actually struggles but does it without stepping on top of someone else. I guess I am a fool. Now that I think about it, maybe I’ll take a classic novel, perhaps Steinbeck’s Grapes of Wrath ; I’ll color the pages purple and use the Geneva font, making the pages slightly askew, because that changes everything, it’ll be mine. Artists should use whatever advantages they can to make money, right? It doesn’t matter. Especially if I can take something from someone no one knows. I’ll have to check out new authors. Who gives a rat’s ass about a working fool, amirite?

          Editing to add: Yes, I sound like a bit of a dick, but my point is that there needs to be some protections for the unknown little people who operate outside of the corporate overlords. It’s good that you make enough money in your work or that you are okay with sacrificing what you created for your company. Maybe you don’t consider your creations art. But think about this. What if someone copied Starry Night in the 1800’s, after seeing Vincent’s painting. If someone in another county who was his contemporary did the exact painting, with texture and composition and content, except that he tilted the frame, blocked the outlines further, and changed the color. Would you go back in time and cancel van Gogh’s rights or credit of that original piece because you fancied some of the other artist’s copy better? Remember; he was not really popular in his own day.

          1. I don’t make enough to live on from my sales, not even close, but I’m also just getting started. However, I will make plenty because I’ll move on to tackling problems I can solve.

            You can’t expect protection from others, the law doesn’t really protect the AP, the AP protects the AP. And if you come toe to toe with the AP, even if you’re work is legitimately yours, it really boils down to who has the most money/power.

            I.P. laws only benefit those who can afford to enforce them for their own purposes.

            The real work is in becoming the more know artist for any given idea. Then everyone knows who’s idea it was. Society and economy are cooperative efforts.

            Even at that, owning imagery, writings, concepts and what have you can really begin to limit the creative freedom of others.

            I.P. is just a way to sit back and rest on your laurels, hoping that life will require no further effort of you.

            If you were famous but poor you’d be having a hell of a time protecting your work, though I understand that the two in combination can be hard to imagine in a world where you can “own” ideas. The AP thinks it’s happy about spending it’s dough and using it’s power to hold on to these works, but that’s only because they don’t see the potential of the other option and aren’t structured to embrace it. So artists actually suffer and will suffer more and more from limits.

            Try to take your work to the big time, you’ll be walking on egg shells more and more as your work gets known, you’d better believe it.

            Now if you’ll excuse me I’ll be busy patenting a dance move! :P

          2. What if someone copied Starry Night in the 1800’s, after seeing Vincent’s painting. 

            They would have had just as much trouble selling it as Theo did. Duh. Try to remember that The Beatles’ “Revolution #9” did not reach the Top 40.

            Furthermore, the “art requires suffering” thing is a hoax long disproven.

          3. I don’t think artists need to suffer. That wasn’t the point. But I think I have said the same thing forty different ways on this page, so either I am unable to communicate, people don’t understand, or they are un-budging in their established opinion. At any rate, I already crossed into beating a dead horse territory, so this is will be it.

            Last & final comment: I find it remarkable, as a liberal, looking at the opinions here, from other liberals (I think), who diverge so strongly from a theme, when it involves the word “artist”.

            The AP photographer’s photo is the infrastructure, it is a bridge to a final product. Say the shipping corporation has a nice fleet of trucks, but without a bridge, they travel no where. Without the first image, there would be no hope poster. I wouldn’t care if he used the first image, but he should have credited the first work. He didn’t make his art on his own. It’s like saying, because the shipping company put flags on the bridge, that they built it; they didn’t, and then arguing that now they shouldn’t have to pay taxes to keep the infrastructure whole.

  8. I was hoping someone here could explain to me how copyright law and fair use works in Mr. Fairey’s (legal) case.  I’ve looked at several images, included in the recent news articles and the results of a Google search for Obama and Clooney in 2006.  Here’s one image that is close to but not identical to the image Fairey turned out to have actually based his iconic art:

    If all of these images are AP photographs, what reason did Fairey have to lie?  How would it have changed the outcome of Fairey’s case if he admitted he’d used a close-up AP image instead of just some other one that featured a similar “chin-up and pensive” posture by Obama?

  9. It’s really hard to have sympathy for a man whose career has been almost entirely based on derivative works, who has legally attacked at least one other artist (Baxter Orr) for making derivative works.  It’s also hard to have sympathy for anyone who can afford a 1.6 million dollar settlement and still be able to brag about his “six figure contributions” to charity; I don’t think the 1% really need my crocodile tears.

    1. Fairey doesn’t generally mind when people make derivative work based on his own, he even has a whole showcase of “Obey” parodies on his web site. The reason he sent a C&D to Baxter Orr was that Orr’s posters weren’t a clear example of parody/tribute/whatever. They just looked like Shepard Fairey prints, and were being sold in a market where buyers could reasonably be expected to get the two confused.

      None of which has much to do with the fact that he got busted for lying in court. That’s a big no-no any way you slice it.

      1.  Considering what he was lying about, I agree.

        There are times, of course, when lying in court would be morally required.  As you say, this was definitely not one of those times.

Comments are closed.