NEW YORK — A judge permitted the disclosure for the first time Tuesday that the artist known for his Barack Obama "HOPE" image is under criminal investigation, though details of the probe were not divulged.
U.S. District Judge Alvin K. Hellerstein mentioned the grand jury probe in a handwritten note denying a request by a lawyer for artist Shepard Fairey that a hearing relating to a copyright lawsuit they brought against The Associated Press be closed.
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.
Meir Feder, a lawyer for Fairey, asked for secrecy in a letter to the judge, arguing that a public hearing "would risk compromising the confidential nature of the criminal investigation."
At the hearing, which was open to the public, Feder asked for a six-month delay in the civil case. He said Fairey had been instructed by his criminal lawyer to invoke the Fifth Amendment if asked questions at a deposition.
Hellerstein denied the request, noting that "this whole thing's going to be wrapped up by the end of spring."
He called the copyright dispute a fact-based case.
"Credibility is probably the most significant issue," the judge said. "Credibility is a very important factor and you can't go into credibility without going into the destruction of evidence."
Feder disagreed, saying, "Credibility is not the most important issue."
The judge said it was Fairey's legal right to refuse to answer questions, but added that he could not delay the case because of the AP's urgent need to clear the ownership issue at stake in its copyrights.
"Everything in the world is time-sensitive, particularly news and photographs," Hellerstein said.
The judge said there was "no criminal litigation yet, but it wouldn't be affected by this ruling."
Feder did not immediately return a phone message for further comment.