Folsom Street Fair Organizers Make Questionable Claim Against Americans For Truth

Daniel Gonzales

September 22nd, 2008

Peter LaBarbera of Americans For Truth and I may disagree on pretty much everything related to sexuality but something we both share is the fact we’re activists who rely on “fair-use” to expose and analyze things in the world we find objectionable.

In a recent analysis of Folsom, LaBarbera posted a digital copy of a congratulatory letter from Mayor Newsom to Folsom organizers as a one page excerpt from Folsom’s 2008 Program Guide which he found particularly offensive and illustrated the focus of his analysis.

Folsom organizers took issue with this apparently as their attorney sent LaBarbera a cease and desist letter claiming intellectual property infringement. LaBarbera, aided by the American Family Association’s General Counsel fired back calling their bluff, citing the “fair-use” clause of copyright law.

In this case I agree with Pete. Folsom’s lawyers are full of shit.

Specifically, the letter from Mayor Newsom is not Folsom’s property, it was written by someone at the Mayor’s office and is a matter of public record in the public domain. According to the Digital Millennium Copyright Act misrepresenting ownership of intellectual property puts the person making the false-claim at risk. Per Wikipedia:

anyone who makes a false claim of infringement or false counter-notification is liable for the damages suffered by the other parties

It appears the only thing Folsom organizers have succeeded in is giving the appearance of legitimizing Mr. LaBarbera’s attacks on them by allowing him to paint himself as the victim.

I contacted Folsom organizers to see if their side of the story differed from Pete’s — our email exchange is below:

I’m a pro-gay activist and write for a website called BoxTurtleBulletin.com which tracks and monitors the religious right. Recently it came to my attention that the anti-gay group Americans For Truth is claiming your lawyers sent them a cease and desist letter relating to their use of Folsom St. Fair promotional materials. The full article is online here:

http://americansfortruth.com/news/so-much-for-leather-pride-folsom-
organizers-try-to-stop-aftah-from-exposing-their-vile-event.html

Based solely on Peter LaBarbera’s account it appears he is well within the realm of fair-use and your lawyer’s claims have no ground are designed only to intimidate him.

Before blogging on this I would appreciate your side of the story.

Thanks,
Daniel Gonzales

Folsom’s response:

Daniel,

Thanks for your email. While AFTAH claims fair use, that doesn’t mean it is fair use. There are specific legal criteria by which fair use is gauged. And, there are actually pretty severe limits placed on the amount of a work that can be reproduced under the fair use rule. We state clearly in our Guide: “Reproduction in whole or in part without permission…is prohibited.” That said, we apparently disagree on the issue which is why we are pursuing it. There is no intimidation involved here.

Demetri Moshoyannis
Executive Director

revtj

September 22nd, 2008

The fact that public [gay] sex and S&M [gay] sex is viscerally repulsive to Peter to the point that he is using pictures of it as a fundraiser is a bit Freudian to me. Even San Francisco knows the Leather Community doesn’t represent mainstream homosexuality. But it always seems to grab the photo-ops for mainstream homophobia.

Peter should know that heterosexuals have similar S&M public sex festivals. It just makes me sick to think he missed that. There’s a reason all gay people don’t protest heterosexuality based on the straight S&M clubs. It would be stupid logic.

The bottom line is who has sovereignty over their human body — the state, the city, the church…or the individual? Tell Peter to read Michel Foucault and then get back to his issues in therapy.

B. John

September 22nd, 2008

Daniel, I’ve worked in the Records Management industry for over 20 years, and am the former records manager for a city in North Carolina. Public Record laws differ from state to state of course, but you can be fairly confident that a letter, signed by the Mayor (acting as the Mayor) and on City Stationary meets pretty much any standard as a public record, and is therefore wholly in the public domain.

Maybe someone at Folsom thinks they could have a case if they could prove that LaBarbera scanned the image from their program, but I would still consider that a stretch. First, it would only be a small percentage of a total program, therefore still falling within the bounds of Fair Use…but the overriding legal construct here is that it is a public record, and I can’t reproduce a public record and then claim ownership of the contents of the record.

Folsom made an error here, and I don’t understand how their attorney went along with this.

a. mcewen

September 22nd, 2008

Ugh. I cringe to think how much mileage Peter is going to get out of this. We just had a pride in South Carolina (with the mayor of Columbia and RuPaul) and it was a family friendly event. We had a lot of families with their children attending our event.

But Peter insists on focusing on subcultural events and some people are going to follow up on his nonsense.

Johno

September 23rd, 2008

Lawyers make these kind of empty threats on a daily basis. The website Something Awful has practically made a living off finding ways to get threatened in this manner to the delight of their anti-authoritarian readership. It’s common knowledge to anyone of a certain age who is moderately fluent in internet culture that these threats mean nothing and are sent out routinely, often to the embarrassment of the sender.
It’s true that Peter will blow it up into something it isn’t, but that’s his MO. And seeing as with his very limited influence, he isn’t worth more than a laugh on a slow news day, which this isn’t…I find it hard to care about this or be scandalized by Folsom’s actions. Even if the shoe were on the other foot I wouldn’t blink at this; which it was once right here — my only reaction then was extreme disappointment that BTB actually chose to honor a fundie author’s request for picture removal when it was completely uneccessary to do so.
I hope you’ll take it as constructive criticism when I say that it seems like sometimes in BTB’s quest to be a recognized voice of legitimacy, fairness and accuracy, you miss the boat completely.

Timothy Kincaid

September 23rd, 2008

Johno,

If you recall, I mocked their request. I replaced the picture of Linda Harvey with a cartoonish caricature of Linda which looked like she’d been made up by an enthusiastic drag queen in the dark.

http://www.boxturtlebulletin.com/2008/05/27/2098

Johno

September 24th, 2008

I do remember that. My feeling at the time (and still) was disappointment. Because regardless of what it was replaced with, her picture was taken down, which is exactly what her absurd empty-threat letter requested. A lawyer is not required to fight this kind of threat, just a wastebasket. You can bet Peter LaBarbera is not going to take down the letter, or replace it with a fake one.
I do agree that Folsom lawyers have made a mistake wasting any energy on an attention-whore like LaBarbera, but the truth is that these threats are sent out with the frequency and value of toilet paper by every aged lawyer and public figure in the world who has not yet caught up with technology.

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