You also have to be right, particularly when it comes to legal doctrines like Fair Use.
If you haven’t yet, check out Jason’s post on the harassment campaign Surly Amy (Amy Davis Roth) is facing because she decided to keep her commitments to TAM then didn’t keep quiet about the shit she dealt with there. The most recent chapter of this involves a blog post by Justin Vacula. It’s one of his typically vacuous, ignore-the-point-and-complain-around-it arguments trying to suggest that creating and wearing items at a conference that are designed to hurt another conference-goer should be just fine with the conference, because…because…well, as far as I can tell, just because Vacula thinks so.
In posting this, Vacula used one of Amy’s images–a photograph she took of one of her own pendants. He then received notice that a DMCA complaint had been lodged, presumably by Amy, covering that image. The post was reverted to draft until he could remove the image, but his vague complaining was untouched. The notice covered the image only.
Vacula complained some more, as is his right. Then he decided to take things further. Without, as far as I can tell, consulting an attorney, he filed a DMCA counter-notification. His legal reasoning appears to be nothing more than, “If I really didn’t have a right to use the image, why didn’t Amy just send me an email?” I kid you not.
There’s a little problem with this. In order to file the counter-notification, Vacula was required to attest that he had a legal right to post that image. Not only that, but by submitting the counter-notification, he has made himself subject to charges of perjury if he is found wrong.
As someone married to a photographer, and as a blogger who occasionally uses images in her work, I can tell you that Vacula is probably wrong.
Fair Use is a First Amendment right, a speech right. The doctrine allows a person to use as much of a work by another as is required to create your own original work. As with speech, there are more restrictions when that speech is commercial or when that speech infringes on the rights of others. For an excellent discussion of Fair Use, I recommend the Copyright Crash Course from the University of Texas. It’s arranged well and written in accessible language.
Some points raised by the discussion there:
- Commercial use weighs against use of copyrighted material being Fair Use. If you make money (say, through advertising on your blog), you should generally be paying for or otherwise licensing the copyrighted material that doesn’t belong to you.
- Artistic works generally have a stronger protection than factual works.
- When an entire work is used, it should generally be licensed. More on how this applies to photography shortly.
None of these are factors in Vacula’s favor. Neither is the advice available for bloggers dealing with photographic copyright.
When it comes to photos, the problem is that it generally isn’t possible or desirable to copy, distribute, or display just a portion of the photo. In the particular area that concerns us—the internet—some courts have held that use of a photograph is fair if the purpose is to direct the viewer to the original and if it is of vastly reduced resolution. But do not let that fool you. That description also fits what legacy media outfits like CNN and the New York Times do and they pay good money to the wire services for the pleasure.
Bloggers may want to put themselves on stronger footing by reducing the resolution of displayed photos and hotlinking to the copyright holder’s original, but that does not necessarily make their use “fair.” The central issue in cases like this is the purpose of the blogger in displaying the photo. If he is just doing the same thing as the wire service—providing newsworthy images to interested viewers—he will likely still be infringing the copyright.
To get around this problem, the key is that your criticism or comment has to be about the photograph itself and not just the content that it depicts. In essence, you are making the photography part of the news story. You can accompany your criticism of the photography with discussion of the content, but without the former, you are just illustrating your news posts with photos that belong to someone else. Again, that’s what the legacy media does and they have to pay good money to do it.
Was Vacula using the photograph as illustration, or was he criticizing “the photograph itself”? Well, here’s what he had to say about it:
Enter, then, the recent DMCA complaint which I received directed my blog post offering criticism of ‘Surly Amy’ comments concerning how conference organizers should ban ‘fake jewelry.’ Included in the post, with a caption noting the image was a Surly-Ramic, was an image of Surly Amy’s “This is what a feminist looks like” jewelry. I used this because this provided a criticism of Surly Amy’s ideas and was relevant to the post considering that ‘Surly Amy’ identifies as a feminist. As is usually the case, I provide images with my blog posts that are relevant to the post in question. I have never had any legal problems because of this. All sorts of people do this under fair use.
So…an illustration. Someone should maybe give Vacula some advice about talking publicly about pending legal matters.
No, let me correct that, someone with Vacula’s best interests at heart should really have suggested he get sound legal counsel before sticking his neck out on this. Instead, what he got was this:
I pondered whether or not I would file the counter-claim (after taking down the image) and decided to do so after some advice from friends with what might be my foolhardy sense of courage, pride, integrity, and honor.
This is the risk you run when you make important decisions based on your emotions and advice from people who aren’t very good friends. You don’t get to decide you have a legal right because you think someone is being mean to you. You don’t get to claim that the law should go your way because you know in your heart of hearts that someone is a bad, bad person. That’s motivated reasoning, which is incredibly dangerous when you’re dealing in legalities.
That’s Orly Taitz territory.
Whatever you do, don’t let this happen to you. I don’t have much regard for Vacula, but even I feel a tiny bit sorry for what’s likely to happen to him if Amy decides to follow through on this. Federal perjury charges are no game. Nor are Los Angeles attorneys who deal in intellectual property cheap (making now a lovely time to buy that Surly-Ramics piece you’ve been looking at). Vacula’s likely cost himself a lot with this mistake.
Learn from example on this one, kids. Don’t try this at home.