Why Are Taxpayers Criminally Investigating Shepard Fairey For Lying In A Civil Lawsuit?

Shepard Fairey, creator of the iconic "Hope" poster during Obama’s Presidential campaign, is not perfect.

After the Associated Press claimed that Fairey’s use of one of their images for the poster required authorization, Fairey — represented by the Fair Use Project at Stanford University — pre-emptively sued to establish (by way of a declaratory judgment action) that his transformation of the original image constituted "fair use" and thus did not infringe on their copyright.

Frankly, I thought he had a good case, but the suit hasn’t gone well: last October, Fairey was forced to admit he spoliated and fabricated evidence:

"Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image," Fairey said. "The AP claimed it was one photo, and I claimed it was another."

New filings to the court, he said, "state for the record that the AP is correct about which photo I used…and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images."

You may be shocked to learn that people sometimes lie in civil litigation.

It’s true. Just this week, I received a big stack of documents that the defendant in one of my cases thought I’d never see. Sure enough, they prove the defendant repeatedly lied under oath.

But no one outside of the case itself will care. If I take it to the U.S. Attorney’s office, they will tell me to take it up with the judge in my case.

Unless, apparently, the Associated Press is involved:

Fairey sued the AP last February, asking a judge to declare that Fairey’s artwork does not infringe any copyrights held by the AP. A month later, the AP countersued, saying the uncredited, uncompensated use of one of the news cooperative’s photos violated copyright laws and signaled a threat to journalism.

The U.S. Attorney’s office had a grand jury begin an investigation after Fairey said he erred about which AP photo he used as the basis for "HOPE" and had submitted false images and deleted other images to conceal his mistake.

Last I knew, the U.S. Attorney’s office in every district had an unwritten policy of ignoring perjury in civil cases. Though such restraint often pains me — as the plaintiff’s lawyer, I’m often the one who was lied to — I understand it. They have better things to do (e.g., prosecuting human trafficking), and the civil justice system already has methods for dealing with evidence tampering.

Which makes the investigation, at taxpayer expense and at the cost of valuable prosecutorial time and resources, all the more disturbing. Is the Associated Press more deserving of justice than my clients and the thousands of other litigants who every day endure the indignity of watching their adversary lie under oath? Doesn’t the U.S. Attorney’s Office for the Southern District of New York have something better to do?

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