Last Friday, political commenter and blogger Patrick Frey of Patterico's Pontifications found a chilly email waiting in his inbox. The email purported to be a DMCA takedown notice from photographer Ted Szukalski, who complained about Frey's blog post that reproduced and commented on the photoshopped Obama/Palin image pictured at right. The takedown notice read:
NOTICE OF COPYRIGHT INFRINGEMENT IN ACCORDANCE WITH THE DIGITAL MILLENNIUM
COPYRIGHT ACT (DMCA)
In accordance with Section 512(c)(3)
The copyrighted work at issue is the text that appears on
The photograph shows a man shoe shinning woman’s shoes in Sydney Australia, Pitt Street
The URLs where our copyrighted material is located include copied and plagiarised without authorization photographs at:
http://patterico.com/2010/01/01/charles-johnson-denounces-the-right-wing-racism-of-a-picture-forwarded-by-a-democrat/. (Obama/Palin shoeshine plagiarism)
You can reach me at email@example.com for further information or clarification.
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
January 9th, 2010
(as reproduced in Frey's follow-up post)
The image in question is a photoshopped version of Szukalski's photograph of a homeless man shining the shoes of a seated woman (see the non-modified version titled Shoeshine - homeless and a woman client MG_6348-27). The modified version does away with Szukalski's copyright notice and replaces the heads of the shoe shiner and woman with those of President Obama and Sarah Palin, respectively. The photoshopped image caused a small stir in early January when a Colorado Department of Transportation worker faced discipline for forwarding the image. Frey's post took issue with another blogger's description of the incident as an "ugly little upwelling of racism from the right wing base," pointing out that the woman who forwarded the email was a registered Democrat.
At the top of the email, you'll notice the phrase "in accordance with section 512(c)." Under this section of the DMCA, qualifying online service providers, including website operators, can take advantage of a safe harbor that protects them from liability for copyright infringement resulting from their hosting of third-party content. That is, if users of a website upload content, the website operator may not be held liable for those instances of copyright infringement if she meets the requirements of section 512. Among other requirements, a putative website operator must (1) designate an agent with the Copyright Office to receive takedown notices; (2) adopt and communicate to users an "effective copyright infringement policy"; and (3) promptly comply with takedown notices when received.
Szukalski was pretty clearly trying to take advantage of § 512's notice-and-takedown mechanism. But Patterico's Pontifications does not appear to have a designated agent with the Copyright Office or a DMCA policy posted on the site. Even more fundamentally, there's no reason to think that a third party posted the photoshopped image. So, even if Frey wanted to comply (he has absolutely no interest in complying), it wouldn't bring him within the safe harbor. As Ben Sheffner notes:
Patterico.com has not registered such an agent, and thus, even if this incident did involve user-posted material, the DMCA safe harbor would not protect it from copyright claims. Sending a DMCA notice, which sets in motion a process for the site to lose the safe harbor if it doesn't remove the offending material, to a site that isn't even eligible for the safe harbor because it has no DMCA agent and so is completely ineligible for the safe harbor, is a fool's errand.
Well, maybe not completely a fool's errand; it could perform the function of a good old-fashioned cease-and-desist letter. Nevertheless, Szukalski's underlying infringement claim is questionable at best. Frey has a strong argument that his reproduction of the image for political commentary is a highly transformative fair use. Frey, who is a lawyer, put it excellently in his response to Szukalski's email:
As is clear from the discussion at http://patterico.com/2010/01/01/charles-johnson-denounces-the-right-wing-racism-of-a-picture-forwarded-by-a-democrat/, the photograph was posted to comment on the controversy surrounding it. As you know, the issues raised by the photograph (which is significantly altered from the version in which you claim ownership) have sparked lively discussions in the blogosphere about racism and related matters. The posting of the photograph is thus a classic example of a non-infringing fair use under U.S. copyright law. See 17 U.S.C. § 107 (”reproduction…for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright.”).
He also translated this into layman's speak for Szukalski, and quite eloquently so:
I understand that you’re not happy that your photograph was dragged into the middle of a political controversy in another country. I gather that you’re not happy about the way your photograph was Photoshopped.
But I didn’t Photoshop your photo. I commented on a controversy about whether the Photoshop was racist. There was no way for me to make that comment as effectively as I did without showing readers the Photoshop. My commentary was fair use under U.S. copyright law. I have a right under our First Amendment to comment on public controversies in this manner. As a result, I won’t remove the image.
Well said. Odds are Szukalski will do the smart thing and let it go, but CMLP will monitor the case in the legal threats database just in case, see Szukalski v. Frey.