(This is the 8th in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

I’ve been too busy to blog recently about the Hope poster case, but aside from the AP’s answer to Garcia’s claims of ownership, not much has happened. And frankly, given my schedule, I was hoping it would stay that way for a while.

No such luck. AP just issued a press release on recent developments in the case—and it’s a bombshell. It starts off slow, as though the AP was just tendentiously describing some deposition testimony. But then it gets to this:

Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on October 15th, Fairey’s counsel informed The AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

Whoa!

On Friday, the district court in UMG v. Veoh granted summary judgement in favor of Veoh. Decision here, courtesy of Copyrights & Campaigns. UMG, a record label, had sued Veoh, a site hosting user-posted videos, claiming infringement of its music videos. UMG is the second decision to come down on the issue of the responsibility of site owners to deal with continual user infringement under Section 512 of the Copyright Act, and like Io v. Veoh, it’s a big win for site owners. The big one remaining, of course, is Viacom v. YouTube, pending in the Southern District of New York.

There’s bound to be some comment on how this is helpful precedent for YouTube, but I think the cases are importantly different. I’ve noted repeatedly that I think Viacom’s best fact—indeed, possibly the decisive factor in bringing the suit—is that YouTube at one point seemed to be selectively offering to filter uploaded content. See my analysis of this issue from earlier this year.

It doesn’t appear that UMG had anything like this fact to hang its case on.

I don’t mean to clog up our blog with a debate over copyright law, but Gordon’s contribution to the debate Ed and I were having on derivative works is fantastic, and I’d like to do it justice with a long-ish reply. I’m familiar with Looking Backward, having read it in grad school, but I was not familiar with all of the spin-off literature that resulted. Certainly it seems like the debate among rival sequel authors was a good thing that probably decreased Bellamy’s incentives or ability to profit from his work not at all.

But Bellamy’s case is also an atypical case. As I said, I’ve read Looking Backward, and the actual fiction in it seems almost beside the point; even more than most science fiction, it’s really a political tract in novel’s clothing. That makes it more prone to criticism and commentary in the form of follow-on works than most other novels would be. In other words, I think cases like Looking Backward should be handled by an exception to the general rule against unauthorized sequels (fair use), not by abolishing the general rule altogether.