Photo

iStockphoto v. Awkward Stock Photos

Date: 

01/01/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Mark Hauge; Tumblr

Type of Party: 

Individual

Type of Party: 

Individual
Intermediary

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

In late January 2010, iStockphoto sent a DMCA takedown notice to Tumblr, requesting that it to take down photos hosted on Awkward Stock Photos, a Tumblr blog of funny stock photo images found by users on the websites of various online stock photo purveyors.

According to Ars Technica, the notice demanded not only that iStockphotos' photos be taken down, but that all photos on the site be removed. Mark Hauge, who runs the site, told Ars that, before the takedown, he "only use[d] watermarked photos that [he] downloaded and re-uploaded to Tumblr (so [he] wasn't hotlinking) and then linked them back to their original source."

As a result of the takedown notice, Hauge no longer posts photos directly to his blog. Instead, he provides text links back to the source, with each entry reading the same: "Awkward Stock Photo." The effect is certainly not the same as it once was, but still very funny if you're willing to follow the links.

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The Borings Are Back! Lawsuit Against Google Revived on Trespassing Theory

Of all the crazy things I've seen on the Street View feature of Google Maps, including house fires,

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Moore v. Boing Boing

Date: 

12/15/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Marc E. Mayer - Mitchell Silberberg & Knupp LLP

Publication Medium: 

Blog

Status: 

Pending

Description: 

In December 2009, counsel for Demi Moore sent a demand letter to Boing Boing, in regard to a November 17 Xeni Jardin post titled "Was Demi Moore Ralph-Laurenized on 'W' mag cover, with missing hip-flesh?."  The post consisted almost entirely of commentary from Anthony Citrano, a Los Angeles-based fashion photographer.  Citrano speculated that Moore's hip looked digitally manipulated in a cover photo for W Magazine and offered some commentary on the "clumsy mistakes" and "bad art" involved in photoshop botches.

Days later, Jardin published another post titled "Demi claims missing hipflesh is for real. But $5000 says its Moore photoshopping" that icluded the full text of Moore's denial on Twitter, and an offer from Mr. Citrano to make a $5,000 donation to a charity of Ms. Moore's choosing if the image she'd published were provably the unretouched original.

Moore's December 15 letter asserted that the posts defamed Ms. Moore by suggesting that she "secretly uses extraordinary artificial means to alter her appearance," and by insinuating that Ms. Moore had been untruthful in informing people that the image accurately reflected her body and hip. The letter also enclosed supporting letters from W's Creative Director Dennis Freedman and from Mert Alas and Marcus Piggott, the photographers who took the photo. Freedman's letter stated that "no one at the magazine did any retouching of the image of Demi Moore," and the photographers' letter said "there was ABSOLUTELY no retouching on her lips or waist or legs!!"

Moore's letter demanded an apology and retraction, and that Boing Boing remove all false and defamatory statements about Ms. Moore or the photo from the website.  The letter also warned: "Confidential Legal Notice, Publication or Dissemination Is Prohibited." 

In response, counsel for Boing Boing sent a response letter disputing the validity of Moore's claims. The letter denied that Boing Boing made any provably false statements and that the posts said anything defamatory or disparaging about Moore—"[t]o the contrary, any criticism of the photographs by Mr. Citrano is directed entirely at those who may have altered the photographs."  The letter also argued that Boing Boing acted without actual malice, relying "reasonably and thoughtfully upon the opinion of Mr. Citrano—a professional photagrapher with expertise in fashion photography (including manipulation and retouching techniques)." 

In December, Jardin published another post explaining Boing Boing's position and attaching both letters. The post concluded: 

At no point was it the intent of this blog, or this blogger, to insult or offend Ms. Moore, who has embraced the openness of internet culture by way of frequent and intimate Twitter updates. Discussions about whether and/or how a widely circulated image may have been altered are common here on Boing Boing. We are a blog about digital culture, after all, and the technical and creative details that go into producing the images we consume are an essential part of our culture. 

Moore's counsel sent a nearly identical letter to Jezebel.com and fashion photography blogger Anthony Citrano

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Moore v. Jezebel.com

Date: 

12/15/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Jezebel.com; Anna Holmes

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

In December 2009, counsel for Demi Moore sent a demand letter to Anna Holmes, Editor-In-Chief of Jezebel.com, in regard to a Jezebel post from November that speculated about whether Moore's cover photo for W Magazine had been photoshopped because of an extremely skinny looking left hip. 

The letter asserted that the post defamed Ms. Moore by suggesting that she "secretly uses extraordinary artificial means to alter her appearance," and by insinuating that Ms. Moore had been untruthful in informing people that the image accurately reflected her body and hip. The letter also enclosed supporting letters from W's Creative Director Dennis Freedman and from Mert Alas and Marcus Piggott, the photographers who took the photo. Freedman's letter stated that "no one at the magazine did any retouching of the image of Demi Moore," and the photographers' letter said "there was ABSOLUTELY no retouching on her lips or waist or legs!!"

Moore's letter demanded an apology and retraction, and that Jezebel.com remove all false and defamatory statements about Ms. Moore or the photo from the website.  The letter also warned: "Confidential Legal Notice, Publication or Dissemination Is Prohibited." 

In response, Jezebel.com posted the letter and wrote a follow-up piece on the situation.  No photos or statements were removed, but Holmes did publish an apology, of sorts:

That said, we would like to take this opportunity to sincerely apologize if we cast aspersions on, or in any way hurt the feelings of Ms. Moore's left hip, waist, or legs. Our only intention was to call attention to distorted and disturbing-looking magazine covers... and the editors, photographers, art directors and retouchers who commission and create them.

Moore's counsel sent a nearly identical letter to Boing Boing and fashion photography blogger Anthony Citrano.

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Subject Area: 

Priority: 

1-High

Szukalski v. Frey

Date: 

01/09/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Patrick Frey

Type of Party: 

Individual

Type of Party: 

Individual

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Status: 

Pending

Description: 

Ted Szukalski, an Australian photographer, sent blogger Patrick Frey of Patterico's Pontifications what purported to be a DMCA takedown notice on January 9, 2010.  The takedown notice complained about Frey's blog post that reproduced and commented on a photoshopped image showing President Obama shining Sarah Palin's shoes. 

The image in question is a photshopped 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 2010 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.

Frey responded in an email refusing to take down the image and asserting that his use of the photograph for political commentary was a classic example of fair use.  As of the date of this writing, Szukalski had taken no further action. 

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Subject Area: 

Commentary on Obama/Palin Image Generates Questionable DMCA Takedown Notice

Last Friday, political commenter and blogger Patrick Frey of Patterico's Pontifications found a chilly email waiting in his inbox.

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International Olympic Committee v. Giles

Date: 

10/06/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Richard Giles

Type of Party: 

Organization

Type of Party: 

Individual

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

The International Olympic Committee (IOC) sent an email to a Flickr user Richard Giles  asking him to cease and desist from distributing and/or licensing photographs of the 2008 Beijing Olympic events that he had photographed while at the games and posted on Flickr.

Giles originally put the photographs online under a CC Attribution-Share Alike License (CC BY-SA), but then relicensed them under a CC Attribution-No-Derivatives License (CC BY-ND) upon the request of a Wikipedia user, so that they could be used in a Wikimedia project. Later on, a British bookstore used one of Giles' pictures for promoting a book. When this came to IOC's attention, they sent the cease and desist letter to Giles. 

IOC invoked contractual limitations found on the back of tickets:

As you know, when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

The letter also suggested a trademark-oriented claim:

Olympic identifications such as the Olympic rings, the emblems and mascots of the Olympic games, the word 'Olympic' and images of the Olympic games belong to the IOC and cannot be used without its prior written consent.

Giles reports that it was not clear to him what exactly the IOC wanted him to do, so a chain of mutual emails followed, in which IOC clarified its position that the only acceptable copyright notice for pictures from Olympic events would be "all rights reserved." In an effort to keep the CC licensing regime, Giles counter-suggested licensing the pictures under a noncommercial CC license, but IOC declined:

IOC's current policy is to restrict the use of pictures taken at the venues to private, domestic and non-commercial use and does not allow licensing of pictures to third parties, even for free non-commercial use, for the reasons I explained in my previous email.

Therefore, for the time being the IOC considers full copyright as the only suitable credit and asks that you change the license of the photos taken inside of the Olympic venues to 'all rights reserved'.

Throughout the course of these events Giles was in touch with the Electronic Frontiers Australia, a nonprofit organisation supporting online freedoms and rights,  and Creative Commons Australia, both of which advised him that as a first step he should comply with the IOC's demand. Eventually Giles reverted all pictures to full copyright protection, adding a note under every picture: "The license on this photo has been changed from Creative Commons to Copyright [sic] due to a request from the IOC."

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Content Type: 

Subject Area: 

Priority: 

1-High

Taylor Building Corp. v. Benfield

Date: 

08/05/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Benfield; Net Access Corporation

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Ohio

Case Number: 

1:04cv510

Legal Counsel: 

Todd Hunter Bailey - Frost Brown Todd LLC

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Material Removed
Settled (total)

Description: 

On August 5, 2004, Taylor Building Corporation of America, a residential construction business, sued Eric Benfield in Ohio federal court alleging libel, tortious interference, and misappropriation of trade dress. The dispute revolved around Benfield's publication of a self-described "gripe site" that included statements and photographs about a Taylor construction project that was the subject of a contract dispute between Taylor and Benfield's parents.

On motion for summary judgment in June 2007, the court dismissed the claims of tortious interference, trade dress infringement, and the libel claims relating to all but two potentially defamatory statements. Ultimately, the parties settled and the case was dismissed in August 2007. 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

HF Reviewing 11/2

Priority: 

1-High

Smith-Green Community School Corp. v. T.V. & M.K. (minors)

Date: 

01/01/2009

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

T.V.; M.K.

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Indiana

Case Number: 

1:09-cv-00290

Legal Counsel: 

Kenneth Falk-ACLU Indiana

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

High School Principal Austin Couch suspended two female high school sophomores from participating in extracurricular athletics after Couch obtained sexually-suggestive photos that the students took of themselves and posted to MySpace.  The students, T.V. and M.K., subsequently filed a class action lawsuit in the United States District Court for the Northern District of Indiana alleging First Amendment violations by Couch and the Smith-County Community School Corporation, which operates the high school.

According to their complaint, T.V. and M.K. took photos of themselves at a slumber party in the summer before the 2009-2010 school year, including photos pretending to kiss and lick a novelty phallus-shaped lollypop and wearing lingerie with dollar bills stuck in their clothes.  After the students posted these photos to their MySpace pages, an unknown person gave them to Couch, who suspended the students from all extracurricular activities during the school year, including athletics.  The students agreed to attend three counseling sessions and apologize to an all-male panel of coaches in order to reduce their suspension to 25% of their fall extracurricular activities.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

 

 

Priority: 

1-High

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Minkin; David Lat; Dead Horse Media, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In October 2009, Donald Marvin Jones, a law professor at the University of Miami School of Law, sued David Lat and David Minkin, editor and publisher of the popular law gossip blog Above the Law (ATL), as well as ATL's parent company, Dead Horse Media. The complaint seeks $22 million in damages and an injunction "enjoining Abovethelaw to remove all articles and posts concerning Professor Jones."

The lawsuit revolves around a series of posts ATL published after Jones was arrested in 2007 on suspicion of trying to solicit sex from a prostitute. In these posts, ATL made fun of Jones—calling him "The Nutty Professor"—and posted a screenshot of the "incident report" for his arrest.  In one post, Lat published a photo/graphic mash-up collage forwarded to him by a reader that—according to the complaint—"depict[ed] Professor Jones as a drug dealer and a pimp or both."  The graphic featured one photograph of Jones superimposed on a $20 bill and another talking up a group of prostitutes. 

According to the National Law Journal, Jones pleaded not guilty to the solicitation charge, and the authorities later dismissed the charge and expunged it from Jones' record.

Jones' complaint alleges that ATL infringed his copyright by publishing the mash-up collage because a photo in it was "stolen from the UM website without permission." There is no allegation that Jones, as opposed to the University, owns the copyright in the photo or that the photo is registered with the copyright office. Jones also alleges that publication of the collage casts him in a false light by portraying him as a "dope dealer, pimp, and criminal."

Finally, the complaint alleges that ATL invaded his privacy and cast him in a false light by publishing the "incident report" despite dismissal and expungement of the solicitation charges.  Jones' claim that ATL made "private records public" is complicated by Fla. Stat. § 119.105, which provides that "[p]olice reports are public records except as otherwise made exempt or confidential," and says that, even in the case of exempt or confidential police reports, "[t]his section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information."

On November 4, 2009, after much criticism of the lawsuit in the legal blogosphere, Professor Jones voluntarily dismissed the action.

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It's Election Time Again: CMLP Announces Updated Guide to Newsgathering at the Polls

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections.  In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legal

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Washington Redskins v. Steinberg

Date: 

10/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Dan Steinberg; Washington Post

Type of Party: 

Large Organization

Type of Party: 

Individual
Large Organization
Media Company

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

According to Techdirt, a representative of the Washington Redskins football team requested that The Washington Post remove photos from Dan Steinberg's Post-hosted D.C. Sports Bog because of alleged violation of the Redskins' credentialing policy. 

Steinberg published a post about Redskins' fans' discontent with the team and its owner, Dan Snyder.  The post included photographs Steinberg took of fans at a Redskins game, in which the fans displayed their unhappiness with the team in various ways, including by wearing anti-Dan Snyder t-shirts.

The Washington Post removed the photos from Steinberg's blog in response to the request.  According to Cheap Seats Daily, the Post removed the photos because it did not want to jeapordize its access to the team.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [10/22/2009]

Priority: 

1-High

Polo Ralph Lauren v. Boing Boing

Date: 

10/02/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing; Priority Colo; Photoshop Disasters; Blogger

Type of Party: 

Large Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, Ralph Lauren sent a DMCA takedown notice to Boing Boing's webhost, Priority Colo, alleging that Boing Boing's posting of a Ralph Lauren advertisement violated its copyright. The Ralph Lauren advertisement featured a photograph of an improbably skinny model that appeared to have been photoshopped, and Xeni Jardin's post on Boing Boing reproduced the advertisement with a critical caption: "Dude, her head's bigger than her pelvis." Priority Colo and Boing Boing refused to remove the post, citing fair use.

The advertisement originally came to Jardin's attention via another blog, Photoshop Disasters. Photoshop Disasters published the advertisement with its own critical caption: "Make her head bigger than her pelvis! Do it!" Ralph Lauren also sent a DMCA takedown notice to Blogger, Photoshop Disasters' blog host, which removed the image.  (The original post is still available through Google's cache.)  It is not clear whether Photoshop Disasters submitted a counter-notification and whether the post will be restored.

After a great deal of media attention stemming from the takedown notices, Ralph Lauren acknowledged responsibility for photoshopping the image in a statement saying, "[f]or over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body."

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

-mw reviewing 10/12

Priority: 

1-High

For Once, Illinois Federal Judge Lets 'Em Roll: And Gets Bulldozed

UPDATE:  Federal District Judge Joe Billy McDade has issued a letter apologizing for allowing cameras into his courtroom to cover a Sept. 15 hearing on a consent decree settling a school discrimination case.

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Przydzial v. Alkhateeb

Date: 

08/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Firas Alkhateeb

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

In August 2009, photo-sharing site Flickr removed an image from Firas Alkhateeb's photostream in response to a DMCA takedown notice.  The image was a photograph of President Barack Obama from the cover of Time Magazine modified to look like Heath Ledger's Joker from The Dark Knight.  The image gained some notoriety when someone else used it to make a poster captioned "socialism." 

At first, it was unclear who sent the DMCA takedown notice because DC Comics and Time publicly stated that they had not done so.  Some investigation by Thomas Hawk, chief executive of Flickr rival Zoomr, revealed that someone named Edward Przydzial sent the DMCA takedown notice and claims to be the originator of the Obama/Joker image.  

It is not clear whether AlKhateeb has filed a DMCA counter-notification. 

After the debate sparked by Flickr's removal of the image, the company revised its policy for handling DMCA takedowns.  According to ZDNet

"Upon receipt of a complete NOI [notice of infringement], the US
Copyright Team will replace the image with a new static image that
bears the following copy: 'This image has been removed due to a claim
of copyright infringement,'" said Heather Champ, Flickr's director of
community, in a comment. 

According to Flickr, under the change in policy the discussion under the photo is preserved and it should be easier to reinstate a photo after a counter-notification is filed.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Rosenberg v. Spicy Bear Media

Date: 

05/15/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Spicy Bear Media LLC; Kyle J. Redinger; John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

3:09-CV-37

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Rosenberg, a professional photographer, sued the operator of a Charlottesville, VA community blog (now defunct) for copyright infringement, claiming it failed to remove images of his photograph that were posted (twice) to its site by unknown third parties.  The complaint also included a claims for removal or alteration of copyright management information, because the images on cvillain.com were stripped of identifying material attached to the original picture (presumably the copyright symbol, name, and year that appear when mousing over the original photo).

On July 6, 2009, the parties agreed to dismiss the case with prejudice because they had reached a settlement in the amount of $750.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

08/06/2009 - LB editing

Priority: 

1-High

Doe v. Dirty World Entertainment

Date: 

05/06/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dirty World Entertainment; Hooman Karamian, d/b/a Nik Richie

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Legal Counsel: 

David Gingras

Publication Medium: 

Website

Status: 

Pending

Description: 

An anonymous Texas woman has filed suit in state court against the operator of The Dirty, self-described as the "first and most famous reality gossip blog," for allegedly lending credence to a third-party comment on the site that showed her picture and accused her of having herpes. According to True/Slant, the suit alleges the third-party poster asked the blog's founder, Hooman Karamian, if he would still sleep with the woman — to which Karamian allegedly replied, "No, I don't want to get infected."

According to the ABA Journal, the suit also names as a defendant Dirty World Entertainment, the Arizona-based owner of the website. The ABA Journal also reports that the plaintiff will argue the defendants should not be protected by Section 230 of the Communications Decency Act because Karamian allegedly made comments that validated the third-party post. 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

7/26/09- AVM- 230 case, nothing on wl

7/31/09 - CMF updated

Priority: 

1-High

Yes We Cannabis: Another Obama Photo Sparks Fair Use Controversy

Is it fair use to recast an iconic photograph of President Obama to send a political message?  You've got to hand it to the National Organization for the Reform of Marijuana Laws (NORML) for adding a humorous dimension to this now-familiar question:

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