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Fair use, DMCA, and silly image editing?
August 6, 2013 3:04 PM   Subscribe

I have a photograph in my Flickr feed that has proved very popular on Tumblr and other young-person social networking sites. I have a personal connection to the picture and so, when I see it posted without credit, I have been enthusiastically submitting DMCA takedown notices to remove the image. Yesterday I saw it as someone's Twitter avatar. They had cropped out most of the photo and added a stupid mustache to the picture. I submitted a DMCA notice; Twitter's response was to ask me if it didn't fall under fair use. I don't think it does.

- The image is © All Rights Reserved
- I am Canadian, the Twitter user is American
- The original image is available as a print for purchase (not on Flickr)
- The Twitter user is just a person, not a business

Am I within my rights to ask Twitter to take this down because Twitter is hosting a derivative of my work that I have not consented to, or does the derivative fall under fair use? I have allowed the image to stand anywhere that credits the photographer and provides a link back to the original, but this is not an option here.
posted by Nyx to Law & Government (30 answers total)
 
Message the person, ask them to put a credit and link in their profile?

You do get profiles on this twitter thing, right?
posted by jsturgill at 3:06 PM on August 6, 2013


Also: might be protected on grounds of parody. My lay understanding is that parody has been interpreted rather expansively by courts.
posted by jsturgill at 3:08 PM on August 6, 2013


The nationality difference doesn't matter.

I think you're good asking for the take down. I think there might be a case for parody.

I'm not a lawyer, and certainly not yours.
posted by theichibun at 3:12 PM on August 6, 2013


Have you registered this photo with the US Copyright Office or the Canadian equivalent? You are going to need that if you want your demands to have any teeth.

Under 17 U.S.C. § 107, the elements of fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

What is your basis for thinking that this Twitter user's profile picture is not fair use? He's not using it commercially, it is a small crop that has omitted most of the original image, and thus, I suspect this image has very little, if any, effect on your potential market for selling prints of the original image.

Fair use is always a fact question, but I don't think it looks good for you if you want to push things. I would let this one go. I am sorry someone drew a mustache on this picture, but that is not generally unlawful.

Source: IAAL who does some IP. I'm not your lawyer. (and I do not know who would take this case if you wanted to)
posted by Tanizaki at 3:13 PM on August 6, 2013 [2 favorites]


Not threadsitting, but when I said it wasn't an option, I meant "I'm extremely annoyed by the edit that was added to a rather good picture and I would sooner photograph a family wedding for free then allow this person to continue using my image with or without credit".

As far as I know, Twitter hosting an image that they do not have permission to host is the issue. I don't know if it falls under parody or not, which is why I asked.
posted by Nyx at 3:14 PM on August 6, 2013


(Last time, promise) Canadian creators automatically own the copyright to their works. Is there a reason I would need to further register it with a governing body?
posted by Nyx at 3:18 PM on August 6, 2013 [1 favorite]


Just to point something out, US authors do as well. I don't know where this myth that everything I do is Public Domain unless I say otherwise came from.

Sure, the copyright office thing makes it a cleaner case. But it's not needed.
posted by theichibun at 3:25 PM on August 6, 2013 [3 favorites]


2nding Tanizaki, in full.

Have you messaged the Twitter user to just ask them to not use it?

If you want to spend money on this, hire a lawyer and let them run the analysis for you.

Is there a reason I would need to further register it with a governing body?

In the U.S., Copyright is established at the time of creation, but getting damages out of that copyright absent a registration is difficult. Short version: you have to prove it cost you money somehow, which is typically very difficult.

That said, registration is generally not necessary to receive injunctive relief for infringement.
posted by toomuchpete at 3:31 PM on August 6, 2013 [1 favorite]


Consider licensing it to him for a small payment.
posted by yclipse at 3:32 PM on August 6, 2013


As far as I know, Twitter hosting an image that they do not have permission to host is the issue.

They're hosting an image derivative of yours but created by the user that uploaded it, not your original work. They don't need your permission.
posted by Venadium at 3:40 PM on August 6, 2013


They had cropped out most of the photo and added a stupid mustache to the picture.
[snip]
Am I within my rights to ask Twitter to take this down because Twitter is hosting a derivative of my work that I have not consented to, or does the derivative fall under fair use?


Leonardo Da Vinci couldn't stop Duchamp, so I think "fair use" may be indeed the case here. (Yes, I know that Da Vinci was also dead at the time of Duchamp, but still.)
posted by EmpressCallipygos at 3:48 PM on August 6, 2013


My understanding is that fair use is a defense. That is, you make your claim of infringement, and then the burden of proof is on the person using your photo to establish fair use. You don't have to be the one to prove (to Twitter or in court) that it's not fair use.
posted by payoto at 3:52 PM on August 6, 2013 [1 favorite]


Have you asked the user directly? The person in question may not even know this isn't kosher.

In my experience, "you're using my photo without having fully licensed it for your use. I own the copyright of this image, and I'd appreciate you cease and desist using it" may very well get you what you want here. Twitter has a lot of stuff to do without worrying about your DCMA and the user might be perfectly happy to swap out. (Not that that's okay -- Twitter was really lackadaisical about the fact that an individual was using my copyrighted business name as a their twitter handle, so I don't know if they're great at this stuff in general.) I know that's not exactly what you asked, but it might get you what you want?
posted by Countess Sandwich at 4:09 PM on August 6, 2013


Am I within my rights to ask Twitter to take this down because Twitter is hosting a derivative of my work that I have not consented to, or does the derivative fall under fair use?

You are certainly within your rights to ask, however if they refuse, you are probably going to have to sue them to get them to comply.
posted by Rock Steady at 4:32 PM on August 6, 2013


Why not simply respond to Twitter that you don't think it does fall under fair use and see what their response is?

(Btw, your photos are amazing. Really stunning.)
posted by JohnnyGunn at 4:48 PM on August 6, 2013


Fair use can also be an exemption, and people who rely on fair use should not actually have to end up in court to defend their right to stick a silly mustache on a picture.

I might be on the outside on this one, perhaps everyone else will disagree, but I think you might want to re-think this. It's hard to know, because we only have your details about this, and they aren't specific, but, even according to you, they aren't using your full, original image, but just a small part of it. Additionally, they have modified it with a silly mustache. To me, that *is* a parody. I actually do think this is fair use, and that you are being uptight about it.

You might not like the fact that someone has used your image this way, but you know, tons of huge corporations also hate all the people who use fair use in even the tiniest least infringing ways possible, so unless you can supply more details as to why this is so terrible, I'm actually pretty impressed that Twitter didn't just automatically yank the pic, the way so many sites do, without personal review these days. The DMCA is overused and incorrectly used to yank all sorts of stuff.

The fact that they are an individual, rather than a business, actually favors the argument for fair use, rather than infringement.
posted by instead of three wishes at 5:08 PM on August 6, 2013 [9 favorites]


It could be transformational use,but it's sort of jerky. Have you contacted the user and told him to knock it off? It's not parody. Twitter isn't going to do anything but I'd contact the guy who thinks he's cute and ask him to stop. If he refuses, try his ISP provider.
posted by Ideefixe at 6:46 PM on August 6, 2013


I basically agree with instead of three wishes. IANAL, but from the info you've provided, it sounds like it could be fair use. I don't know if it's parody, but it's a small part of the original, it's being used by one person, it's not for profit or commercial, and it doesn't sound like it would have any effect on any market for the original.
posted by at home in my head at 8:34 PM on August 6, 2013 [1 favorite]


I second or third not going to (or through) Twitter. Email or phone the user directly if this information is available on the user's Twitter profile, send a private Twitter message, or, if this is the only way you can figure out to communicate with the user, post a tweet on his feed saying firmly but politely that the avatar is a copyrighted image of yours, would he please remove it.

If this gets to the point where you are going to have letters sent by lawyers (which people protecting their copyright often have to do), it seems to me you would have greater leverage if the recipient were a private citizen rather than a billion-dollar corporation.

I also like the idea of offering to license the image to the user, though something tells me this is not your cup of tea.
posted by La Cieca at 8:35 PM on August 6, 2013


Whether or not you think it is a good or crappy item, if it is a derivative work, then they have the right.

The "send the take down and make them prove it is fair use" approach when even you as the person filing aren't sure is exactly the abuse that makes the DMCA a crappy law, you are just talking about doing it by hand rather than using bots to crawl through media sites and auto mail.

In addition Andy Warhol's Campbell's Soup and Appropriation and most of the history of music in general for examples outside of even the parody exception, which it sounds like you are describing.
posted by slavlin at 8:49 PM on August 6, 2013 [2 favorites]


It sounds fair use-ish to me. That is, I think it's not cut and dried NOT fair use if that makes sense. I look at a lot of guidelines for Fair Use of various things in the education/library world. I am not an expert other than that. I think Twitter is trying to get you to leave this alone by asking about the possibility of fair use.
posted by jessamyn at 9:04 PM on August 6, 2013 [1 favorite]


My lawyer friend, who isn't my lawyer or yours, always told me "fair use is a defense, not an excuse." Same goes for the parody exception. He also tells me that a track record of declining to defend your IP over time weakens your ability, in court, to defend your IP when you do try to enforce your rights.

Some people suggest a 10% rule for fair use, though-- it sounds like this might be applicable if you decide that's a standard you can tolerate.

Why not offer the person a single-user, non-transferable, one-time-only license to the work in return for overt credit?
posted by Sunburnt at 9:10 PM on August 6, 2013


I meant "I'm extremely annoyed by the edit that was added to a rather good picture..."

I'm not a lawyer, but if your motivation here is that the person has transformed the image in such a way and to a degree that what his or her version expresses to you is annoying rather than whatever your original version said, well that seems to me as a layman precisely the purpose of fair use - so that copyright doesn't simply grant the owner an indirect means to silence ideas and expressions they disagree with or which annoy them. So, I wonder if it would be in your interest to ask the mods to anonymize this post.
posted by XMLicious at 9:46 PM on August 6, 2013 [1 favorite]


It won't answer the question firmly, but Alex Wild (insect photographer & entomologist) has a post up about some cases of possible infringement he's dealt with and what the outcomes were.
posted by R343L at 11:26 PM on August 6, 2013


I am also not a lawyer, but this seems to indicate it's not as slam-dunk fair use as some of the commenters assert. Fair use is relatively narrow, not the much wider "hey, I'm not making money off of it" defense that a lot of people think is applicable.

When I googled "fair use photography parody", I got a number of results that seem to indicate that there is a big difference between using a similar photo to achieve a similar, but hilarious, effect (which would be parody), and using portions of the actual photo to be a smartass and/or in lieu of going out and taking your own original photo (probably not parody). See here, possibly.

My understanding of the 4 fair use rules is that they must be considered inclusively. Meaning, you answer each question, and then sum up the answers. Rather than being able to choose one that works for you, regardless of the other ones. Just meeting the threshold for one criteria doesn't mean someone isn't in violation of the others unless it is overwhelmingly fair use.

So if I were trying to show that your work is not fair use, I'd probably argue it this way:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Twitter is a commercial entity, even if the individual user is not. The user gets paid for their work via being able to use the service for free. The use is for sure NOT nonprofit educational purposes. It is not criticism, reproduction for scholarly discussion, or anything like that.

2. the nature of the copyrighted work;

I guess this means the uniqueness of it? A photo of a paid model or a private citizen is going to be much more protectable than a photo of a celebrity, since there are thousands of people taking pictures of celebrities and Mt Rushmore, etc.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The fact that the photo is recognizably yours seems to indicate that there is a substantial amount of it being used. The percentage doesn't matter as much as the relevance. A 10% crop of the subject of the photograph is far more substantial than a similar sized crop of a tree in the background.

4. the effect of the use upon the potential market for or value of the copyrighted work.

I would certainly think that the value of your work has been diminished by a bunch of twitter and tumblr users using it as fodder. Nobody in their right mind would pay you money to license your work if they knew it was all over the internet with mustaches drawn on it, except in the rarest of circumstances.
posted by gjc at 2:11 AM on August 7, 2013 [1 favorite]


I am also not a lawyer, but this seems to indicate it's not as slam-dunk fair use as some of the commenters assert. Fair use is relatively narrow, not the much wider "hey, I'm not making money off of it" defense that a lot of people think is applicable.

Well, I am a lawyer who has actually handled copyright cases, and I think your analysis is legally incorrect. Please forgive me for making a second comment in this thread, but I think I need to address the flawed analysis:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Twitter is a commercial entity, even if the individual user is not. The user gets paid for their work via being able to use the service for free. The use is for sure NOT nonprofit educational purposes. It is not criticism, reproduction for scholarly discussion, or anything like that.


No, that is not how it works. Almost every publication imaginable will ultimately be published by a commercial publisher such as a website or magazine. That is not what "commercial nature" means. "Commercial nature" means that the allegedly copyrighted work is being used for commercial purposes, such as if the alleged infringer is actually selling the work, incorporating it into advertising, that sort of thing. The argument that users of a free service are somehow being paid for a commercial venture makes no sense.

The nature and purpose of the fair use is the primary factor according to the US Supreme Court. The question is, have you added something new? Some sort of new insight or aesthetic? Is this commentary? it is a challenging analysis, especially when we cannot see the photo.

2. the nature of the copyrighted work;

I guess this means the uniqueness of it?


You guess incorrectly. First, "unique" means there is only one; either something is unique or it is not. Every copyrighted work is unique by definition. What "nature of the work" means is to look at the benefit of the information being transmitted to the public. For example, it is better for a fair use defense if the copyrighted information is fact rather than fiction. It is also better for a fair use analysis that the copyrighted work has already been published rather than be unpublished because the "cat is out of the bag" already. In this case, I haven't seen the photo, but it has already been published on Flickr and is presumably of reality. That leans towards fair use, but I think it is the least significant factor in this case.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The fact that the photo is recognizably yours seems to indicate that there is a substantial amount of it being used. The percentage doesn't matter as much as the relevance.


Boy, is this mistaken. Recongizability has nothing to do with it. A few seconds of the closing of "Casablanca" is instantly recognizable as being from that movie, but using that small clip for commentary or parody would still be fair use. The amount absolutely is the key - the statute says "amount and substantiality of the portion in relation to the copyrighted work as a whole". That is as clear as it gets. The less you take, the better your chances as a fair use finding. However, the "substantiality" does figure in to the extent that the less memorable the excerpt is, the better. To use the same example, a "Casablanca" clip of Humphrey Bogart taking a bite from a ham sandwich would be more likely to be found fair use than the iconic closing scene. But, in the case of parody, even going to the most iconic excerpts of the copyrighted work is fair game.

4. the effect of the use upon the potential market for or value of the copyrighted work.

I would certainly think that the value of your work has been diminished by a bunch of twitter and tumblr users using it as fodder. Nobody in their right mind would pay you money to license your work if they knew it was all over the internet with mustaches drawn on it, except in the rarest of circumstances.


Not really. This is about infringing on a potential market. For example, if you create a painting and then I take a high-resolution picture of it and begin selling online so people can have high quality copies at a fraction on the price. There is a good chance that there is a market for photos of the painting, so this would likely fail as fair use.

Your analysis is exactly incorrect, especially in a parody context. It is possible to imagine a parody so good that it destroys the reputation of the original work to the point that no one ever wants to buy it or look at it again. That would certainly cause a loss of income for the original copyright holder, but not the loss of income that the statute envisions. You can destroy the market for the original, but you cannot infringe upon it by fulfilling the market for the original. The photos of your painting would fulfill that market for the original, but a scathing parody would not.

Lastly, there is another factor that I did not mention in my first post. There is also the concept of the alleged infringement being so small that the court will not even do this analysis and say, "this is too small to be infringement, so we aren't going to bother." To give an example, let's say I am shooting a film in a house that has your painting hanging on the wall so that it appears on screen for a split second while a character runs by it. There is a good chance that will be de minimis use that does not even require a fair use analysis. On the other hand, if two characters have a half minute of dialogue in front of the painting, that's probably not going to be de minimis and we need to do a fair use analysis. In this case, we can't tell if this is de minimis, although "They had cropped out most of the photo" is helpful for someone who wants to assert a de minimis defense.

Getting back to this case, I don't think OP is going to go through the trouble of a suit. The issue here is getting Twitter involved. That is a matter of their corporate policy, but the first thing to bear in mind is that a very popular occurrence on Twitter is the "retweet", which is the wholesale copying of another Twitter user's copyrighted text. I hope most would agree that a copyright suit by someone who doesn't like being retweeted would be pretty silly. Twitter's DMCA policy and procedures are here. OP, I think you need to think very carefully about if you want to proceed. You need to make sure that you are proceeding in good faith. ("good faith" has a legal meaning that is different from the way it gets used in MeFi discussions). What I take from this incident is that this is about your hurt feelings because someone drew a mustache on a small portion on a picture you took, not an infringement that hampered your ability to reproduce, distribute, or display the copyrighted work. The Copyright Act is not for hurt feelings. In fact, I think the fact of hurt feelings helps the Twitter's users case as a potential parody. Coolio's hurt feelings because of "Amish Paradise" did not entitle him to file a lawsuit.
posted by Tanizaki at 7:28 AM on August 7, 2013 [6 favorites]


Thanks for all the input. I think I have made a decision, which is: ignore this use. It definitely isn't what I wanted to do.

A couple of notes for posterity:

- I am not filing a suit. I was never going to file a suit. I filed the DMCA takedown because Twitter is hosting a derivative image of mine and I want that image to be hosted in two places: Flickr, and where it's being sold. Ideally, I mean. Twitter's own help centre leads you to their DMCA form if you have a copyright issue, which I originally thought I did.

- I am probably not going to message the probably-very-young-and-immature user and ask them to remove it, because I already made that mistake when I first started seeing the image stolen all around the internet. Or maybe I will, just to see how fast I can block a user.

- I still don't understand what constitutes derivative/parody use, but I do understand that this is probably it.

- Imagine the photo is of a cat sitting against a studio background. (It isn't.) The person has taken the photo and cropped out the background, leaving a small amount of the cat's body and the cat's entire face. The photo is very recognizable, and someone has drawn various stupid things on the cat's face.

- I asked this question because Twitter's reply said that I would be liable for damages if I knowingly materially misrepresented that the material or activity is infringing. Since it seems to be fair use, I will not pursue the DMCA complaint.

- I'm really curious as to what control creators have over their art. REALLY curious.
posted by Nyx at 10:49 AM on August 7, 2013 [1 favorite]


I'm really curious as to what control creators have over their art. REALLY curious.

The Stanford Fair Use Project is great resource for understanding what is likely or not likely to be counted as Fair Use in the US. It tells you about as much as you are going to find out short of consulting a lawyer.

See also Moral Rights Basics. "Moral rights" are more in line with what you are talking about, but they probably aren't going to apply in this instance either. Had the work been a painting or limited edition print, you might have had a case against someone drawing mustaches on it.
posted by philipy at 12:48 PM on August 7, 2013


I'm really curious as to what control creators have over their art. REALLY curious.

As you can tell, it's really complicated. The examples that I am familiar with in my field are directed towards educators and librarians when working in/with certain types of materials and are geared more towards the question of "What is acceptable fair use?" You might enjoy reading any or all of these, a list that I cribbed from one of the frequent presentations I give about fair use. I still don't understand what constitutes derivative/parody use, but I do understand that this is probably it.

The Wikipedia article is not terrible on this front and they have a mustache example. Parody is another thing altogether and it basically says you can use aspects of a copyrighted work in order to make fun of it or comment on it, that is protected to a certain extent.
posted by jessamyn at 1:26 PM on August 7, 2013 [3 favorites]


A Fair(y) Use Tale (10 min video) is a fun summary of copyright and fair use laws, and why they are the way they are. It's almost a perfect illustration of what makes derivative work and parody, being made up entirely out of clips from Disney movies.

The basic idea is that while people aren't entitled to deprive you of income by making copies of your work available, it has always been important for culture that people are able discuss, respond to, and riff of each other's work in various ways. For example it would be ludicrous and culturally stifling if people couldn't write reviews and analyses of a work, and include quotes and illustrations in those analyses.

In this context "parody" is treated , in some ways, as a kind of commentary on the parodied work. Maybe it's pointing out the absurdity of the worldview of that work, maybe it's making fun of the overwrought style, or whatever. The freedom for people to be able to do that kind of thing is considered very important, and parody actually gets more leeway than pretty much any other kind of derivative work. Because people have to understand what it is that is being held up for mockery, the most distinctive things about the target work, its "signature" if you will, are liable to held to be fair game.
posted by philipy at 10:46 AM on August 8, 2013


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