What Can Happen to Shepard Fairey?

What are the consequences to Shepard Fairey’s recent actions? Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences.

So what can happen? All sorts of bad things can happen under the Federal Rules of Civil Procedure. If a plaintiff fabricated and destroyed evidence, he can have judgment entered against him dismissing his case; if it was the defendant who fabricated and destroyed evidence, he can have judgement entered against him holding him liable on the merits of the claim. The fabricating/destroying party could be ordered to pay the costs incurred by the other party as the result of the misconduct, and a party could be held in contempt, as was the defendant in Jones v. Clinton (although technically civil contempt is inappropriate if the previously withheld information has been produced). Title 28 of the United States Code, Section 1927 also provides for counsel to be held liable for causing excessive costs.

But this isn’t it. There may also be criminal sanctions — obstruction of justice, perjury, and false statements come to mind. Or criminal contempt. The Department of Justice may find this of interest.

Shepard Fairey has posted his thoughts on his website, where he admits to the following:

The new filings state for the record that the AP is correct about which photo I used as a reference 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. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.

Tags: Associated Press, Copyright, intellectual property, judge hellerstein, kirkland & ellis, Mannie Garcia, Shepard Fairey, stanford fair use project