It ain’t over ’til it’s over — Fairey Judge says Obama Hope poster is not fair use, but don’t necessarily believe him.

AP reported last week that in the lawsuit about whether Shepard Fairey’s use of an AP photograph as source material for his Obama Hope poster constituted fair use of the copyrighted photo, the judge, Alvin Hellerstein (with whom I worked 25 years ago), stated in a hearing last week that “I have a feeling … that whether it’s sooner or later, The Associated Press is going to win,”

First, of course, I am convinced as a legal matter that Fairey’s appropriation of the photo constituted fair use. Of course, I’ve been wrong before.

But it is also important to note that, as AP’s story makes clear, Judge Hellerstein made his comment — during a hearing on matters in the case that did not pertain to the legitimacy of Fairey’s fair use claim — to urge that the parties settle the case. Moreover, the judge “said a settlement might be possible if the AP dropped some of its demands that Fairey be punished for copyright infringement and for his actions in the case.”

Judges do all sorts of things to promote settlement. They even make suggestions that one side will win even before both sides have had the chance to present their evidence and make their legal arguments. Judges like settlement. Private agreements to settle cannot be overturned on appeal, and they do not constitute legal precedent that ties the hands of courts making later decisions. And, in fact, the vast majority of civil cases settle (over 85%). In short, I think Judge Hellerstein could have been strongly promoting settlement without having prejudged the case.

But AP also stated that neither side “embraced the judge’s suggestion” that the parties settle and that “AP lawyer Dale Cendali told Hellerstein the news organization was seeking ‘substantial damages.’” It appears, in short, that AP doesn’t want to settle because it wants to make an example of Fairey. And I could imagine that Fairey, who began the lawsuit, wants to pursue the case as a matter of principle. In fact, even if he does lose in front of Judge Hellerstein, he has an appeal as of right to the 2d Circuit, which, given that it has extended the right of appropriation further than any other court, might well represent his best shot at victory.

In short, I think the case is far from over, even if many others are reporting otherwise.