Saturday, October 24, 2009

Mike/Techdirt blowing smoke in Fairey/AP matter?

Mike at Techdirt took a whack at AP reporting in the Fairey/AP case, because Fairey's lawyers may not yet have withdrawn:

But, if we're going to talk credibility, shouldn't the Associated Press be careful to actually fact check its own articles on a case involving itself? In announcing the news about the Fairey revelation, the AP claimed that Fairey's lawyers had withdrawn from the case. However, his lawyers say that's simply not true, though they may withdraw from the case.

One commenter to TechDirt got to the nub of the matter, which is why the Stanford attorneys are talking about withdrawing BUT also saying the case for Fairey is strong:

What we really would like to know, however, is why Stanford's CIS attorneys would (or feel like they should) withdraw from representing Fairey if they believe (as Falzone has been quoted) that the case still has fair use merit. To do so know seems like they're bailing because Fairey no longer is the ideal, model, star client they hoped he would be for them. If that's the case, it suggests they took the case for publicity purposes in the first place, not primarily to fight against constricting parameters of the fair use doctrine.

In fact, one could argue that now is the time Stanford's CIS lawyers should redouble their efforts in this fair use argument. And they'd have little to lose: if they win, they're geniuses; if they lose, it's because Fairey screwed up the case by being an incredible witness. They have no salary to lose on this...

But Stanford's salaried lawyers are going to bail, even when they think the core legal issue still has merit? Sounds like cherry picking to us.

Within a story in the LA Times:

Falzone, Fairey's attorney, said there "are lots of reasons lawyers may not be able to continue a representation, but in this case the underlying merits have nothing to do with that. We believe as strongly as ever in the fair use and free expression issues at the center of this case, and believe Shepard will prevail on those issues. We hope this unfortunate situation does not obscure those issues."

In reality, Fairey's "fair use" defense was better with Fairey's falsely claimed source picture, and is a lot weaker with the source photo actually used. Looks a lot like derivative work. Until the Stanford folks come up with a more plausible excuse for their talk of bailing, that's the way things look, bloviation aside.

See also

Fairey admits misrepresentation in Obama Hope poster matter


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