Obviously, if he was arrested for solicitation because he did in fact offer an undercover police officer, posing as a female prostitute, $20 to engage in a sexual act, and then pleaded no contest to this charge, and received pre-trial diversion and later, an expungement (note: I am repeating others’ allegations, of which I course do not have any knowledge, I do not know if these allegations are true), then I do not see anything untruthful or defamatory in any of the ATL postings or anything actionable. If, on the other hand, he was arrested because the police officer “jumped the gun” and assumed he was soliciting sex, when he was just asking for directions, etc. (his story), then there could be a claim of some sort for defamation and misappropriation/use of commercial likeness, barring some statute of limitations problems. Repeating false allegations of criminal conduct is defamation per se. Using someone’s likeness/photo without his permisssion to sell ads/drive internet traffic, can also give rise to tort liability. Yes, there would be an interesting issue about “public figure” and what standard applies, but ATL is not immune anymore than any print newspaper would be immune, from defamation liability.

The photo doesn’t belong to him so he can’t bring a copyright claim. My only point about fair use is that it is frequently, but improperly, invoked as a defense and it is hard to obtain a dismissal at the pleadings stage if the attorney pleading the copyright infringement claim has half a brain.

Christopher Cooke: I agree that the claims in the complaint are poorly pleaded and subject to dismissal, but I am not sure the lawsuit is frivolous.For example, I think Professor Jones might have an action for defamation, commercial misappropriation of his likeness and unfair competition (I don’t know about Florida law on these points).These are not the claims he pled, but are related to them. So, I would dismiss with leave to amend.

I fail to see how a lawsuit is not frivolous if all of its claims are meritless merely because different claims would not be meritless. (Even if I agreed with you about the merit of those different claims, which I do not.)

The copyright issue turns on ownership. I had a client whose picture was taken from his employer’s website and used to ridicule him in internet posts. We got the employer to authorize a take down notice to the website, which worked. Fair use is a mushy defense and would depend on the context. If Above the Law is seeking, as the professor alleges, to use his photo and blog posts to steer buyers away from his books and to its website and its publications/competitor products, that might impact whether Above the Law is making fair use of his photo (which is likely owned by the university).

It might, except that’s a ludicrous claim. Obviously all commercial media publications are, in a sense, attempting to use their content to drive the public to their advertisers. But it’s ridiculous to claim that — except via ridicule, which is not a copyright-related argument — AtL is trying to steer buyers away from his books.

The copyright issue turns on ownership. I had a client whose picture was taken from his employer’s website and used to ridicule him in internet posts. We got the employer to authorize a take down notice to the website, which worked. Fair use is a mushy defense and would depend on the context. If Above the Law is seeking, as the professor alleges, to use his photo and blog posts to steer buyers away from his books and to its website and its publications/competitor products, that might impact whether Above the Law is making fair use of his photo (which is likely owned by the university).

WOW ! He’s an actual LAW PROFESSOR ??? At an actual law school ? This is how / what he teaches students who want to become LAWYERS ???

That complaint is an outright fabrication. The A-form speaks for itself.

mamiejane says:

Actually, the copyright claim might be a winner but not for Professor Jones. If every new use were a fair use, photographers would have no income at all.

mamiejane, please provide an example of a use of a photograph that you would consider fair use.

This post was mentioned on Twitter by bensheffner: Eugene Volokh on law professor’s suit vs. “Above the Law”: it’s “a loser…downright frivolous”: http://bit.ly/2xSGdL...

Mike McDougal: That complaint is horrible.What an embarrassment to his school.

The best part is that it’s not even just the arguments he makes that are horrible. It’s written at a level that I wouldn’t even allow on my blog, and it’s full of grammatical errors. What a moron.

Chiara Brown: It’s unfortunate that Above the Law likes to “have fun” with people’s lives in that way. Having had someone close to me wrongly accused of a career-ending crime, and seeing his face plastered everywhere with lots of bloggers “having fun” at his expense — even after the charges were dropped and the false accusers and incompetent, biased police reprimanded by the judge — I understand the professor’s desire for revenge.

Yes, but the good Professor has dredged this all back up in a very poorly thought out and written way.

He became a law professor the same way he was admitted to law school–via an “affirmative action” quota. Being admitted, and hired, because the school sought “diversity,” rather than competence is the very simple rationale. And if you look at the array of articles he’s written on various forms of victimization, you have a pretty fair picture of what he’s about.

We get that he wasn’t charged with, or even precisely accused, of an actual crime. But that’s not the question. The question is what circumstances led the police to file the incident report they did. For example, did the police make up the $20 figure? Or did that come from somewhere?

If he’s trying to clear his name, it would help a lot if he told his side of the story. We get that there are defects in the other side.

Plaintiff demands a trial by jury on all issue that are friable

Amazing that all of you Law Professors and practicing attorneys fail to recognize a Clean Air Act violation allegation when you see one. When your case stinks so badly, blame it on the beans.

lawyer who read the complaint: Having spent a lot of my career dictating, I find “dictated, never read” to be extremely implausible. Do you mean that he dictated a federal complaint and had it formatted and filed by someone else without ever seeing it? (That’s the typical case with “dictated but not read,” where an admin or secretary takes the dictation, formats it, and sends it out.) Or that he dictated it and formatted it, but never reviewed for content typos, and so on?

I would assume the former.

We really have two potential options for the complaint being in the state that it is:

1. Jones wrote the complaint himself and is personally responsible for the poor quality. Therefore he is either a poor writer, or is sufficiently lazy that he doesn’t care about the grammar in his complaint.

2. Jones dictated the complaint, and it was written and filed by someone else. (Typically this would be a legal secretary or assistant of some sort).

I’m familiar with a number of lawyers that do the second for many more minor pleadings, giving the document only a cursory look when they sign it. But this is also typically accompanied by a certain level of trust or familiarity with ones assistant that they’re aware of the necessity for properly written pleadings and know how to write.

But, New York is also an unfavorable forum. New York has abolished both false light and public disclosure of private facts torts, and has a one year statute of limitations for defamation (Above the Law made four posts, three more than two years before the suit was filed, one a couple days less than two years before the suit was filed; Florida’s statute of limitations for defamation is two years, for public disclosure of private facts the statute of limitations is four years).

The strongest claim is probably commercial appropriation of likeness (recognized in both New York and Florida) but that isn’t plead, doesn’t carry $22 million in damages, and could still be subject to a fair use defense similar to the defense applicable to a copyright claim.

I believe that makes it even worse. Knowing this complaint would be a “blog topic” should have made the esteemed professor even more careful as to what was contained therein.
Any bets as to whether he will avail himself of the Rule 11 “safe harbor?”