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It Isn’t Enough to Feel Righteous

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.

Comments

  1. Composer99 says

    ‘Twould appear Vacula is pounding the table (in the absence of facts & law on his side to pound).

    The problem, as astutely noted, is that that can get expensive. And, most likely for Vacula, end badly.

  2. hannanibal says

    WOAH! He used a photo of a pendant? Shit just got real….

    Amy needs to get a life. This shit is blatantly fair use.

  3. hannanibal says

    I’ll tell you why it’s fair use in a couple of days/week when the claim has been dropped and the photo is back up? How’s that grab ya?

    DMCA claims over photo’s of pendants. LOL. You people have sunk so low.

  4. hannanibal says

    When not writing entire blog posts about the hurt caused by photographs of ceramic pendants Stepanie Zvan also likes to look up the correct spelling of the word “whoa”.

  5. says

    Ah, so you’re claiming it’s Fair Use without having the tiniest idea what you’re talking about. Thanks for confirming it.

    Since when is claiming your legal rights to your own work sinking low? Particularly, when is it lower than violating someone else’s right to their work?

    And what I’m really, truly fond of is not letting apparent 12-year-olds with reading comprehension problems waste my time. Bye.

  6. says

    @hannanibal:

    When not writing entire blog posts about the hurt caused by photographs of ceramic pendants

    Funny you should mention that, since Vacula has done the same thing. Except that, unlike Stephanie, he doesn’t really write about much else besides how much he hates FtB and the Skepchicks. Are you leaving these comments on his posts as well?

  7. says

    I’ll tell you why it’s fair use in a couple of days/week when the claim has been dropped and the photo is back up? How’s that grab ya?

    It’s not like Vacua just pulled a very cheap trick that says: “I might be wrong, but I doubt taht you want to spend thousands of dollars and lots of time to prove me so.”
    So, yes, he handed Amy a ticket to ruin him because in the shrivelled up bean he calls his heart he knows that she most likely won’t do that over a pic of a pendant.

  8. says

    hannanibal:

    Did you actually read the OP? You know, the bits where Stephanie cites passages from pertinent commentary on copyright law and DMCA?

    Because it certainly does not appear that you did based on your comments.

  9. Gary says

    I was a photo researcher for a worldwide publication for nearly two years. I can confidently say that the writer of this article doesn’t understand fair use. Vacula has a very solid case and Surly Amy made a huge mistake with her DMCA claim.

  10. says

    Gary, would you care to share your expertise here instead of just claiming it? Why does usage of a copyrighted photo in a blog post that doesn’t criticize the photo constitute Fair Use? What part of using that photo, instead of linking to Amy’s work, was required for Vacula’s expression? Go ahead, wow us.

  11. Gary says

    It would fall under news reporting. It is a reference to the reader of the artwork discussed. It falls under fair use. Just as if a news story discusses scientology they cam use a banner or logo from the scientology website. The intensity of your opinion has no weight, nor does your condescension.

  12. iknklast says

    Gary – you’re very confident. I can’t get lawyers to make such a confident statement! Copyright law is something that almost anyone who understands much can realize that they don’t understand copyright law. It’s so full of strange things…Whenever I ask anyone for an opinion of copyright law, they will ALWAYS preface with a lot of waffle words – and those are lawyers and librarians, probably the two groups of people most knowledgeable about copyright law.

  13. J. J. Ramsey says

    Here’s the four-factor test from the Copyright Crash Course site:

    1) What is the character of the use?
    2) What is the nature of the work to be used?
    3) How much of the work will you use?
    4) What effect would this use have on the market for the original or for permissions if the use were widespread?

    Let’s run through each of the factors:

    1) “Character of the use”: Basically to decorate a blog post and to show an example of Surly Amy’s ceramic artwork. It’s not particularly transformative, and Vacula’s blog post isn’t criticizing the artwork itself.

    2) “Nature of the work to be used” It’s a mix of imaginative and factual. It’s imaginative to the extent that it is a photograph of an original artwork, but it’s factual in the sense that the purpose of the image is to document what the physical piece of artwork looks like.

    3) Vacula’s using the whole image.

    4) This is the factor that, in my non-lawyerly opinion, most leans in Vacula’s favor. Surly Amy doesn’t sell digital images or photos. She sells ceramics. The JPEG of her work is a poor substitute for the work itself. It has no texture, and one can’t put it on a keychain or wear it as jewelry. Now Vacula’s criticism of Surly Amy may affect the market for her work, but just the putting up of an image? Not so much.

    Practically speaking, Vacula’s use of an image of Amy’s work was a trifle, copyrighted or not. It’s not the sort of matter that merits using such a morally dodgy draconian law like the DMCA in the first place. Furthermore, I doubt that the DMCA action was really about the use of the image. If someone had gushed about Surly Amy’s work and posted the image as an example of how cool her ceramics were, I suspect that neither Amy nor her fans would not be so quick to slap it down.

  14. says

    Giliell@10: I think she might not actually have a choice in the matter — she has copyrighted works that she needs to defend under the States’ current (and odious!) intellectual property regime. I think if she filed the DMCA over misuse of her copyrighted works without permission, and they claim that their burning indignation alone grants them fair use, then she HAS to fight. Like, no choice in the matter.

  15. says

    If someone had gushed about Surly Amy’s work and posted the image as an example of how cool her ceramics were, I suspect that neither Amy nor her fans would not be so quick to slap it down.

    Indeed, since fans gushing about the actual artwork is unlikely to have a negative effect on either Amy’s business or her mental/emotional state.

    The fact that Vacula’s post is part of a prolonged, irrational, vitriolic campaign of unwarranted anti-feminist harassment of Surly Amy should not be ignored.

    Though I’m sure you would like to.

  16. Gary says

    It doesn’t matter what Vacula says the purpose of the article is. It matters how the picture functions in the article. The article is critical of a position but not specifically of the image of the jewelry. The function of the photo is to give the reader an example of jewelry. The blog could cover many topics but only the method and the reasonable expectation of the audience is what is relevant to fair usage.

    Vacula could come out tomorrow and say that he intended the article to be a method of selling tiny versions of the jewelry which cannot be seen by humans, but only by the Smurfs who wear them and it will have no impact on the decision. No reader of the article would come away thinking that the image was used in an attempt to sell. The image was not directly criticized or parodied. It was simply an example as reference to the reader.

  17. Your Name's not Bruce? says

    “Practically speaking, Vacula’s use of an image of Amy’s work was a trifle, copyrighted or not.”

    Isn’t part of the issue that it wasn’t just a photo of Amy’s artwork but AMY’S PHOTO of her artwork? So if what had been posted was a photo I had taken of Amy’s artwork, it would by MY copyright violated if my permission to post my photo had not been obtained?

  18. Gary says

    “Your Name’s not Bruce”

    Yes it has to do with the specific photo. That specific photo of the artwork has to be copyrighted. It can’t just be the photo of the artwork that is copyrighted. Can anyone confirm that the specific photo is copyrighted? After all my understanding is that she is only selling the artwork and not photos of the artwork. It would not seem cost efficient to be copyrighting something which would not be for sale.

  19. Simon says

    That specific photo of the artwork has to be copyrighted. It can’t just be the photo of the artwork that is copyrighted. Can anyone confirm that the specific photo is copyrighted? After all my understanding is that she is only selling the artwork and not photos of the artwork. It would not seem cost efficient to be copyrighting something which would not be for sale.

    My understanding is it was a photo of o Surlyramic that Amy had already published on her own website. Therefore it was her copyrighted image.

    Are you asking if it was a registered copyright?

  20. J. J. Ramsey says

    Gary: “Can anyone confirm that the specific photo is copyrighted?”

    It would be highly improbable if it weren’t, since copyright is automatic and doesn’t require registration. It’s not a work by the U.S. Government, and apparently no one has explicitly put it in the public domain, so it’s almost certainly copyrighted by somebody, probably Amy herself.

    Sally Strange:

    The fact that Vacula’s post is part of a prolonged, irrational, vitriolic campaign of unwarranted anti-feminist harassment of Surly Amy should not be ignored.

    Whether Vacula is a vacuous shitbag troll or a lying fuckface is irrelevant to whether his use of the work is fair use or whether the DMCA is being abused in a sort of poorman’s version of a SLAPP suit.

    Jason Thibeault:

    Giliell@10: I think she might not actually have a choice in the matter — she has copyrighted works that she needs to defend under the States’ current (and odious!) intellectual property regime.

    IANAL, but I think it’s trademarks, not copyrights, that are a use-it-or-lose-it sort of thing.

  21. Steve Williamson says

    As far as I understand it – Amy has to (now that a counter claim has been filed) show that she would have / has suffered monetary loss as a result of the photo being used. Given that she is in all likelihood now going to be getting MORE sales due to people coming out to support her by buying more of her product, this would be very difficult if not impossible for her to prove.
    I would expect the image to be allowed to be re-inserted into the article should Justin so wish after the requisite 10 day period (this being the time allowed to Amy to take the matter to a (costly) court hearing to uphold her complaint). Is all that *really* worth it for a photo (given she has also filed at least three other DMCA complaints against a different WordPress user who in all likelihood will also be filing counter claims. This could get EXTREMELY costly for Amy should she wish to pursue 4 claims through courts.

  22. Simon says

    As far as I understand it – Amy has to (now that a counter claim has been filed) show that she would have / has suffered monetary loss as a result of the photo being used. Given that she is in all likelihood now going to be getting MORE sales due to people coming out to support her by buying more of her product, this would be very difficult if not impossible for her to prove.

    I’ve not seen a single source that says that showing actual damages is a requirement for copyright infringement. I can see where this might apply to something like defamation, but DMCA is a different matter altogether. Where are you getting this information?

  23. Cocksniffer says

    SO hilarious. All you WRAs have wound yourselves up tighter than Ophelia’s legs over this bullshit, and it’s all been a very nice earner for one person.

    As the Sex Pistols said: “Ever feel like you’ve been conned?”.

  24. Christopher Camp says

    It is fair use, because the article was (partly) about Ms Roth’s pendants. The legal layman’s explanation he gave retroactively (it was meant to illustrate Ms Roth’s feminism et al.) has no legal merit and no relevance. What makes this fair use is:

    1.) the fact that the article he wrote is partly about the pendants she makes.

    2.) the fact that Ms Roth did not suffer any commercial loss or damage through Mr Vacula’s use of that photo.

    3.) that Mr Vacula did not use the photo for his own financial gain.

    4.) that the amount of Mr Vacula’s own intellectual property in that blog post by far outweighs the small picture.

    I simply do not think Ms Roth has a good case. What goes for Mr Vacula goes for Ms Roth too: one should always seek legal counsel before filing a DMCA.

  25. Patrick says

    Perjury doesn’t punish being wrong, it punishes lying. The chilling effect link you posted says that, though the legalese makes it less clear than it could be.

    So here you go.

    http://www.fas.org/sgp/crs/misc/98-808.pdf

    “In most cases, the courts abbreviate their description of the elements and state that to prove perjury under Section 1623 the government must establish that the defendant “(1) knowingly made a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to any court or grand jury of the United States.”

    “A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.”

    There’s a lot to read there, but the important part is that “knowingly” is always going to be an element.

    So if he thought he had the right to post these, but was wrong, no perjury. Maybe other stuff, but not perjury.

  26. says

    Patrick, Vacula has shown enough ill will toward Amy–and told the world that he’s done little enough to understand Fair Use–that I wouldn’t want to be him trying to establish good faith in this. Just…no.

    Christopher, don’t give up your day job, and don’t offer anyone legal advice. You don’t even understand the small bit of Fair Use that I’ve presented in this post.

    Gary, I hope you have some small understanding, after the responses you’ve received, of just how well that question about whether the photo was copyrighted demolishes your claim to be any kind of expert on this.

  27. says

    “Ever feel like you’ve been conned?”

    Goodness, no. Nice people who do good work for the movement making money making art that makes other people happy and carries our messages to the world? How on Earth would that be anything other than exactly what I want to see?

  28. Christopher Camp says

    Stephanie Zvan – you are wrong. I myself have fought off unfounded copyright claims like this in the past. Your post and the quotations therein are not legal text. The DMCA and the six fair use amendments are notoriously vague and rely very heavily on precedent. The precedents that exist would not work in Ms Roth’s favour.

  29. says

    J. J., your whining about the DMCA is noted. However, this is the law and the procedure for enforcing copyrights online. Amy not enforcing her copyright wouldn’t change the law in any way. It would simply deprive her of her rights. So go lobby someone or something.

    Christopher, I didn’t say the information here was legal text. It being legal text is not required for it to be correct. Do feel free, however, to link us to your work that is just like Vacula’s where you’ve successfully defended your Fair Use.

  30. says

    On the one paw, I’m leaning towards “Fair Use”.

    On the other paw, this guy has been waging a nasty little hate-campaign against Surly Amy, and that really, really needs to be taken into account. And given that abuse is just plain wrong, I’mma have to come down on Amy’s side of things.

  31. Patrick says

    I didn’t say anything about good faith or ill will. I said that he didn’t commit perjury if he made a false statement but without knowledge of its false nature.

    I think that’s quite plausible. Most people do not understand copyright law.

    Even the scenario you attribute to him in this very post doesn’t involve knowledge of the falsehood of his statements. You accuse him of motivated reasoning due to a sense of self righteousness. If true, that factual scenario probably exonerates him of perjury.

    “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.”

    This is true and applies to everyone, even to people who are correct about their opponents being bad, bad people.

  32. says

    #18, Jason Thibeault, #26, J. J. Ramsey: Mr. Ramsey is correct, it is trademark which must be vigorously defended or potentially lost to “genericism,” not copyright. There is no obligation on the part of a copyright owner to pursue action against infringers, no fear of loss of copyright due to failure to pursue in any given case.

    #16, J. J. Ramsey: I agree with your analysis that only the fourth factor is in Vacula’s favor, in that his use of the image is unlikely to have any effect on the commercial market for the image, since she doesn’t make her living selling the images. I’m not quite so down on the DMCA as you are–at least not about the online provider safe harbor provisions, which introduced some clarity to the process which didn’t previously exist. It made things much, much easier for online providers. It has, of course, been subject to abuses, but in my experience–as a recipient of several DMCA notices, including one from the Church of Scientology and one (as the leader of an organization that ran an online forum) from Answers in Genesis; as a person responsible for dealing with DMCA notices for one of the largest global network providers; and as a sender of DMCA notices to take down spam blogs reproducing my own work–it’s worked out pretty well most of the time. I think it could be improved with the right penalties for bogus DMCA notices and already has been improved with a security exemption on the reverse-engineering restriction.

  33. pilot says

    Just remember that Stephanie’s experience in this matter amounts to “being married to a photographer and sometimes using images in her blogs”. Consider that before you take seriously her pithy dismissals of some the relevant points posted here.

  34. says

    Patrick, you didn’t say anything about good faith. The DMCA itself does:

    (3) CONTENTS OF COUNTER NOTIFICATION.-To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

    (A) A physical or electronic signature of the sub-scriber.

    (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

    (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

    (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

  35. says

    Well, pilot, there are a couple of other things you should consider. I’ve managed Fair Use and permissions well enough that I’ve never had to deal with a DMCA notice. Also, I didn’t rely on my personal experience to write this post, merely to know that there was something worth writing about; I linked the experts. Argue with them.

  36. pilot says

    Well, pilot, there are a couple of other things you should consider. I’ve managed Fair Use and permissions well enough that I’ve never had to deal with a DMCA notice

    Presumably this means that you have not been on the receiving end of a DMCA. Have never filed one and never counter-filed against the DMCA. You have no experience, this is not a point of honour nor something to be proud or ashamed of. It is a simple matter of fact isn’t it?

    Also, I didn’t rely on my personal experience to write this post, merely to know that there was something worth writing about; I linked the experts. Argue with them.

    Fair enough, and you have linked to another page… I disagree with you so i’m to what? Email them? I’m not arguing with them. I think you are off base. What a cowardly tactic.

  37. says

    In what universe is successfully operating within the law “no experience” with the law?

    You are perfectly capable of arguing with what the experts have had to say right here. You haven’t done that. You’ve just sneered as pointlessly here as you have on Jason’s post. You’ve tried to attack my credentials to write about this matter without disputing even one of the particulars presented. Start doing that, or stop wasting my time.

  38. Midnight Rambler says

    On the other paw, this guy has been waging a nasty little hate-campaign against Surly Amy, and that really, really needs to be taken into account.

    In that it would be amusing to see him get smacked in the head by a lawsuit, yes. But at the same time, as several people have noted, there really isn’t any basis for it. Frankly, this is just getting stupid.

  39. pilot says

    Stephanie, any idiot could falsely DMCA this blog right now. I don’t think the fact that you’ve “operated within the law” and had no experience with the DMCA qualifies you to talk on the subject. It especially doesn’t qualify you to put down people who are just trying to get through to you. The fact is that you’re probably just under the radar or have been lucky.

  40. says

    pilot, I’m bored now. You have exactly one more comment to actually engage with the information here instead of going on with your extended argument ad hominem.

  41. says

    The fact that anyone who claims to “know about copyright” would ask the question”does anyone know if it is copyrighted?” shows that that person lied or has greatly overestimated their own expertise when they claimed to “know about copyright.”

    If you know ANYTHING about US copyright, you know that since the 1970s even a child’s fingerpainting is copyrighted from the moment of creation.

  42. says

    Both here and on Justin’s blog, Pilot is determined as hell to turn this into a discussion of some minor imagined technical grievance over how someone reacted to being targeted with a hate campaign.

    Very important to Pilot to divert attention from the real issue, so important that Pilot has devoted hours to it.

    That, after all, is what’s important here. The need to make sure that when you gang up on someone and mock and harass them they don’t respond to the shit you’ve put them through in some way that you can nitpick to death.

  43. says

    Jafafa Hots, I find it very interesting how many people here have chosen to evaporate rather than demonstrate the expertise they claim to have. I do have to hand it to Gary and Patrick, though. They stuck it out and kept arguing until it became obvious they just didn’t have the relevant facts in hand.

  44. Forbidden Snowflake says

    J. J. Ramsey

    If someone had gushed about Surly Amy’s work and posted the image as an example of how cool her ceramics were, I suspect that neither Amy nor her fans would not be so quick to slap it down.

    “I bet you wouldn’t be complaining if the guy who grabbed your ass looked like Brad Pitt!”

  45. Christopher Camp says

    Evaporated? No, just went to bed. I cannot provide the examples you requested. I have no idea why.you want to see them. How would they pertain to the matter at hand?

  46. says

    Why on earth has “comercial loss” suddenly become a factor?
    Comercial loss has zero to do with this. Copyright can be about comercial interests, it isn’t automatically.
    For all those people claiming that since the post discussed the jewelery it was fair use, here’s a picture I recently took.
    I suggest you rightclick on it, it will show you a “all rights reserved”.
    This is my picture. These aren’t my otters, obviously. So, fair use would mean you criticise the picture: light, angle, focus…
    It doesn’T mean you can claim fair use for discussing otters or, for that matter, what a bad person I am.

    Jason
    What others said. Amy doesn’t have to involve herself in an expensive lawsuit at this point. That’s why DMCA notices and counter-notices are so popular: Hardly anybody cares about carrying the whole thing out over something like a photo.

    In the meantime Justin has posted Amy’s adress over at the slimepit. I hope Abby, having been the victim of a stalker herself, is proud now.

  47. Christopher Camp says

    It has not *suddenly* become a factor. The commercial loss that results from people stealing other people’s intellectual property has alway been one of the main reasons copyright legislation exists in the first place.

  48. Bruce Gorton says

    Gary

    I work for a news organisation.

    If we could just use any picture we liked under the defence that they were news, Reuters, Getty, AP, AFP and a whole host of other news wire services that sell us pictures would go bankrupt in a month.

  49. says

    Christopher Camp

    It has not *suddenly* become a factor. The commercial loss that results from people stealing other people’s intellectual property has alway been one of the main reasons copyright legislation exists in the first place.

    I see that the point sailed right over your head.
    Although you are of course right that comercial loss is a main factor in copyright legislation, it isn’t the only one and copyright infringement is not dependent on whether or not this caused comercial loss to the owner.
    That’s why making it the focus of discussion is, of course, just derailing for dummies.

  50. julian says

    @Giliell

    I don’t think it’s derailing. Courts (from what I understand) look to more objective (or just easier measure) forms of damage in these sorts of cases. SurlyAmy not suffering financially from this would likely make it seem less legitimate in the eyes of whoever is deciding the case.

  51. Christopher Camp says

    I hear what you are saying, but seeing as commercial loss/damages are at the heart of all copyright legislation, it is likely to play a role here, as well. If I take a colleagues scrawling paper and scribble a note to myself on it, that colleague may very well argue that I destroyed/abused his intellectual property. Would he have a leg to stand on in court?

  52. says

    Christopher Camp
    Ah, so now a scribbling paper is the same thing as a (comercial) photograph?
    BTW, there are scribbled papers in this world worth more than you’ll ever earn…

    julian
    Comercial damage makes a case more clear cut, in some instances*. It isn’t a necessary condition.
    *A devastating critique of a book/movie could cause serious losses. Doesn’t mean the excerpts shown weren’t fair use.

  53. Christopher Camp says

    Easy to do. His blog post consisted of much more than the picture. The content of the picture was specifically referred to in the blogpost . The picture was properly captioned and referenced. The picture was.used to critique Ms Roth’s recent behaviour, i.e. The.picture was not just a frivolous addition to the blog post. If I have ever seen an example of fair use, that’s the one.

  54. says

    I cannot provide the examples you requested. I have no idea why.you want to see them. How would they pertain to the matter at hand?

    What they would do is allow comparison of usage for educational purposes. Incidentally, they would also demonstrate that you, unlike most of the other people here who claim expertise but make naive arguments about it (i.e., that a standard of using the minimum required portion of a work to make your point doesn’t apply), have some idea what you’re talking about.

  55. says

    Thanks, Simon. Oy. Well, if Vacula wanted to go out of his way to demonstrate that the photo wasn’t really necessary for his post, having it reposted elsewhere without the photo (not to comment on where it was published) seems just about the best way to do it. What’s that saying about a lawyer who represents himself?

  56. Christopher Camp says

    @ Stefanie Zvan, between protecting other people’s privacy and my futile attempts at battling your confirmation bias, I’ll choose the former. Go ahead and rave one, the law will run its course and from where I am standing, things do not look overly optimistic for Ms Roth.

  57. says

    Protecting whose privacy, Christopher? You said these were DMCA notices you fought off yourself. The privacy of the people who filed them? You’re perfectly happy discussing Amy in public.

  58. says

    Steve Williamson: The Pac-Man necklace likely falls into the same category as original sketches done at comic conventions and other artistic uses of copyrighted material (collages, wallets made of book pages, Andy Warhol painting a soup can, etc.). It’s pretty standard for artists to sell sketches, often (mostly) of copyrighted characters, and the practice is generally acceptable because the customer is paying for a piece of original art.

    If the artist were to start mass-producing prints of the sketches, they’d be in a much less defensible position. It’s possible that the companies could go after them for one-of-a-kind items as well. When Namco does that, and when Amy files a counter-suit and posts repeatedly about her martyrdom for free speech at the hands of censorious Namco, then you’ll have something resembling a point.

  59. J. J. Ramsey says

    Forbidden Snowflake:

    I bet you wouldn’t be complaining if the guy who grabbed your ass looked like Brad Pitt!

    Spare me the sloppy analogies.

    The mere posting of a picture of Surly Amy’s work was trifle in and of itself. The posting of the image itself did no harm to Surly Amy, financial or otherwise. And frankly, if a harmless act is illegal, then that says more about the law than the act.

    Grabbing the ass of someone without at least some sort of implicit consent (e.g. being in the sort of intimate relationship where such touching is normal for both parties)? That’s sexual harassment, and it’s not harmless.

  60. says

    The “harm” is in the fact that the owner of [a thing] is granted by the law some degree of control over how [thing] is used. If I own a car, I get to decide who can drive it. It’s not legally permissible for anyone in the neighborhood to hop in and take it around town, even if they return it without a scratch–even if they take it through the car wash and fill up the gas tank–unless they have my permission to do so. It’s not legally permissible for someone to come into my house and hang out when I’m not there, even if they pick up before they leave, unless they have my permission to do so.

    And it’s not legal for someone to post copies of other people’s professional photos on any random site unless they have permission to do so. The copyright-holder gets to say where and how the photos are used. Otherwise, there’s not a whole lot of benefit in owning the copyright.

    As I said elsewhere, the convention on the Internet is to treat intellectual property law with casual disregard. Bloggers hit up Google Image Search and find the right images to illustrate their posts, assuming that any use probably qualifies as fair use, and that anything else will go unnoticed by the Powers That Be because the Internet is a big place and even large companies often lack the time and resources to go after every unauthorized use of their copyrighted images online–let alone small, independent artists. That this is the convention does not mean that it is legal, moral, or ethical. Especially when it’s fairly simple to check for Creative Commons licenses or, you know, ask permission.

  61. Steve Williamson says

    “And it’s not legal for someone to post copies of other people’s professional photos on any random site unless they have permission to do so.”

    Not quite. There is this thing called “Fair use” – criticism and parody (among a couple of other things) come under this usage.

  62. Forbidden Snowflake says

    The mere posting of a picture of Surly Amy’s work was trifle in and of itself. The posting of the image itself did no harm to Surly Amy, financial or otherwise.

    It may not have caused her financial harm (though you seem to be simply assuming this; I don’t know how one would assess the impact of one negative mention among several positive ones), but I really don’t see how you can make the claim about “otherwise”. It seems reasonable to me that the use of her copyrighted image without permission in a post deriding her would be adding insult to injury, emotionally. Obviously, he can write whatever he wants on his blog, but why should she lend him her resources to assist him in trash-talking her?

    Can you come up with an example of a use for the photo that would fit your definition of “doing harm” to Surly Amy and shouldn’t be allowed? Because if not, you might as well be saying that her ownership of the copyright means nothing.

  63. J. J. Ramsey says

    Tom Foss:

    The “harm” is in the fact that the owner of [a thing] is granted by the law some degree of control over how [thing] is used. It’s not legally permissible for anyone in the neighborhood to hop in and take it around town.

    That’s a poor analogy because when someone else has the car, you don’t, which is a big difference between a car and a copyable image. A better analogy would be if someone magically created a copy of your car and drove that around town. If you were merely the owner of the original car and not a car dealer, the case that you would be harmed by such magic would be pretty thin.

    Forbidden Snowflake:

    Obviously, he can write whatever he wants on his blog, but why should she lend him her resources to assist him in trash-talking her?

    Think very carefully about what you just wrote, there. If Vacula’s use of Amy’s copyrighted images had been integral to his trash-talking of her, then there would be an even stronger case for the fair use of those images. The use of copyrighted material in parody and criticism involves using the resources of the one being criticized, whether the one being criticized likes it or not.

    Can you come up with an example of a use for the photo that would fit your definition of “doing harm” to Surly Amy and shouldn’t be allowed?

    Since, as I pointed out before, Surly Amy sells tangible products and not the images of said products, it’s hard for me to think of an example where harm would be done to her merely by posting those images. If one were to modify those images to insult her, that could be harm, but it would also be an obvious case of fair use.

    Because if not, you might as well be saying that her ownership of the copyright means nothing.

    Given that I don’t think too highly of uses of copyright law that don’t promote the progress of science and the arts, I don’t have a problem with that.

    I’m reminded of a case several years back where a portion of John Lennon’s Imagine was used in the pseudo-documentary Expelled, and Yoko Ono sued. As awful and dishonest as the makers of Expelled were, they nonetheless had the moral and legal high-ground in that particular suit. The legal high ground may be iffier for Vacula in this case (and IANAL), but he has a pretty reasonable moral high ground on the narrow point of his use of an image from Amy. If Amy wants to criticize what Vacula says about her, that’s fair, but bringing in the DMCA is fighting dirty.

  64. says

    The use of copyrighted material in parody and criticism involves using the resources of the one being criticized, whether the one being criticized likes it or not.

    Are you unable to understand the very simple fact that in order for it to be “fair use” the criticism has to be about the copyrighted material itself?
    Criticising Amy does not give fair use to using her foto. Not even criticising her jewelery grants fair use to using her foto.

    Given that I don’t think too highly of uses of copyright law that don’t promote the progress of science and the arts, I don’t have a problem with that.

    Because you don’t like a law doesn’t mean that it doesn’t apply.

  65. J. J. Ramsey says

    Giliell:

    Are you unable to understand the very simple fact that in order for it to be “fair use” the criticism has to be about the copyrighted material itself?

    Yes. What part of what I wrote suggests otherwise?

  66. J. J. Ramsey says

    Me: “Yes. What part of what I wrote suggests otherwise?”

    Scratch that. It should read, “Yes, I am able to understand. What part of what I wrote suggests otherwise?”

  67. says

    Steve Williamson:

    Not quite. There is this thing called “Fair use” – criticism and parody (among a couple of other things) come under this usage.

    Yes, I’m aware. Fair use is, quite literally, an exception to the rule.

    J.J. Ramsey:

    That’s a poor analogy because when someone else has the car, you don’t, which is a big difference between a car and a copyable image. A better analogy would be if someone magically created a copy of your car and drove that around town. If you were merely the owner of the original car and not a car dealer, the case that you would be harmed by such magic would be pretty thin.

    You’re right, analogies aren’t perfect. Hence being analogous and not, you know, identical.

    And the problem is that, for a copyable image–especially a digital one–the copy is indistinguishable from the original. Which is part of why Intellectual Property laws exist, because copies of images or texts can be made fairly easily.

    You seem to have missed the big point, which is that the thrust of Intellectual Property law is that the copyright holder retains control over how their IP is used.

    The “harm” would be a lot more obvious if, say, Amy were selling prints of her SurlyRamic photos. Then it would be clear, I think, that other people reposting those photos would potentially result in a cut to her sales. IP law protects the IP owner, so that they could, potentially, make that decision.

    Again, the point of IP law (as I understand it, and I’m not a lawyer) is to give the copyright holder control over how the intellectual property is used. It’s not absolute control (they can’t stop legitimate critique/parody/other limited fair use exceptions) but it’s enough control to allow them to benefit from owning the copyright.

    The use of copyrighted material in parody and criticism involves using the resources of the one being criticized, whether the one being criticized likes it or not.

    That’s true, but only to a limited extent. In order for Vacula’s use of the copyrighted photo to be covered-with-certainty under Fair Use, he would have to have been criticizing the photo, not the photographer. And not criticizing the photographer for things unrelated to the photograph.

    Since, as I pointed out before, Surly Amy sells tangible products and not the images of said products, it’s hard for me to think of an example where harm would be done to her merely by posting those images.

    That it’s hard for you to think of harm, even if harm were relevant (which it isn’t), does not mean that there is none. You are not, as you have said, a copyright lawyer, and thus might be prone to overlooking details relating to the quirks of copyright law.

    As to the “Expelled” lawsuit, it hinged on the film’s criticism of the song’s anti-religious lyrics, and thus was considered fair use. Once again, the court found that the film was directly criticizing the work, not criticizing Lennon for unrelated transgressions and using the song as an illustration.

    As to the “moral high ground,” I think that was plenty iffy in the “Expelled” case, since it was a for-profit movie venture and apparently didn’t seek a license to use the song, like any other film would have.

    Which brings us to Vacula, who would indeed have the moral high ground…if he’d asked permission. He’d even have the moral high ground if the point of his post were to critique the photo or the particular piece of jewelry in it, making it a clear Fair Use case. He did not. I don’t understand for a moment this attitude that, somehow, it’s perfectly morally/ethically acceptable for someone to ignore a pretty clear “All photography by Amy Davis Roth ©2008-2012 (unless noted),” but somehow rude–or “fighting dirty”–of the copyright holder to assert their legal right to control how their work is used.

  68. J. J. Ramsey says

    Tom Foss:

    You seem to have missed the big point, which is that the thrust of Intellectual Property law is that the copyright holder retains control over how their IP is used.

    Ultimately, the “big point” of IP law, at least in the U.S., is to promote the progress of science and the arts. That’s the constitutional justification for it, anyway. Having the copyright holder retain control over how his/her IP is used, and even the notion of IP itself, is a means to that end. Furthermore, to prevent copyright law from being an onerous impediment to free speech, the copyright holder’s control is not absolute.

    As you can probably gather, I have little respect for the aspects of copyright law that don’t serve that “big point” or, even worse, get in its way.

    The “harm” would be a lot more obvious if, say, Amy were selling prints of her SurlyRamic photos.

    Of course. If that were the case, then Amy would be using copyright law for its intended purpose, which is to allow one to make a living producing art that is non-trivial to initially create but relatively easy to replicate, thus allowing one to put out more art into the world and promote the progress of the arts.

    In order for Vacula’s use of the copyrighted photo to be covered-with-certainty under Fair Use, he would have to have been criticizing the photo, not the photographer.

    True, and I think that I had said as much earlier, or at least implied it, when I said things like “If Vacula’s use of Amy’s copyrighted images had been integral to his trash-talking of her, then there would be an even stronger case for the fair use of those images.” Obviously, I don’t think a legal fair use case is a slam dunk, even if there’s a reasonable case that the use is morally fair. The reason that I pointed out that “[t]he use of copyrighted material in parody and criticism involves using the resources of the one being criticized” is that Forbidden Snowflake had asked, “why should she lend him her resources to assist him in trash-talking her?”, when part of the law regarding fair use is to allow for that very thing. Snowflake’s line of reasoning was poorly thought out, and I tried to highlight that.

    That it’s hard for you to think of harm, even if harm were relevant (which it isn’t), does not mean that there is none. You are not, as you have said, a copyright lawyer, and thus might be prone to overlooking details relating to the quirks of copyright law.

    True, but that’s not my main thrust. I’m well aware that copyright law as it stands is byzantine and written in sizable part by plutocrats with little interest in the underlying purpose of copyright law (which is why Steamboat Willie is still not in the public domain). When I write of “harm,” I mean actual harm, not “harm” as defined by the parts of copyright law that are kind of perverse.

    I still think that there may be a legal case for fair use, but even if not, practically speaking, Vacula’s use of the image was fair given the lack of actual harm from using it.

    As to the “Expelled” lawsuit, …

    Part of the reason I brought up the Expelled lawsuit is that’s it’s a case where the “good guys” used a morally and legally dubious means of opposing the “bad guys,” and thus led the “bad guys” to have some moral or legal high ground that they wouldn’t have otherwise. I have no illusions that Vacula is a saint here.

  69. says

    Ultimately, the “big point” of IP law, at least in the U.S., is to promote the progress of science and the arts. That’s the constitutional justification for it, anyway. Having the copyright holder retain control over how his/her IP is used, and even the notion of IP itself, is a means to that end. Furthermore, to prevent copyright law from being an onerous impediment to free speech, the copyright holder’s control is not absolute.

    As you can probably gather, I have little respect for the aspects of copyright law that don’t serve that “big point” or, even worse, get in its way.

    I’m pretty sure that my Intellectual Property is protected whether or not it contributes to the progress of science and the arts. You can’t copy and distribute a book by Michael Behe any more than you can do the same to a Brian Cox book. Inasmuch as the Constitution provides for such contributions, it’s also pretty specifically clear that it “[secures] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” “Exclusive” being a key word there.

    As for what you have “little respect” for, I understand. I have little respect for the RIAA and its crusades against minors and grandmothers and the like for music piracy, while the music industry generally screws over the actual content producers. That doesn’t, however, make them legally wrong, nor does it make piracy morally right.

    Of course. If that were the case, then Amy would be using copyright law for its intended purpose, which is to allow one to make a living producing art that is non-trivial to initially create but relatively easy to replicate, thus allowing one to put out more art into the world and promote the progress of the arts.

    There’s nothing in the Constitutional provision underpinning copyright law about “making a living.”

    There is, however, that bit about the artist’s “exclusive right.” Which is (at best, arguably) being violated in this instance. Violations of Constitutional rights are a problem, whether or not they can be shown to cause harm.

    Moreover, just as you note that the law would protect Amy if she were selling the photos today, the law also protects her if she were to decide to start selling the photos tomorrow.

    The reason that I pointed out that “[t]he use of copyrighted material in parody and criticism involves using the resources of the one being criticized” is that Forbidden Snowflake had asked, “why should she lend him her resources to assist him in trash-talking her?”, when part of the law regarding fair use is to allow for that very thing.

    Except it doesn’t, because (as Snowflake noted) he’s trash-talking her, not her photo or even the subject thereof. The photograph is an illustration, wholly unnecessary to the content of the piece, and largely unrelated to it. It is not the subject of the criticism, and therefore does not appear to be protected under fair use guidelines. Indeed, Surly Amy is under no obligation to allow him to use the photo if he’s not covered by the Fair Use exception.

    On the other hand, she doesn’t have much say as to whether or not he can use the parody image he’s created in lieu of the original, because as you note, parody is clearly protected.

    True, but that’s not my main thrust. I’m well aware that copyright law as it stands is byzantine and written in sizable part by plutocrats with little interest in the underlying purpose of copyright law (which is why Steamboat Willie is still not in the public domain). When I write of “harm,” I mean actual harm, not “harm” as defined by the parts of copyright law that are kind of perverse.

    Amy’s not long-dead. Her photos are not being exploited by a large corporation. She is an original artist trying to maintain control over her work, a right which she is guaranteed by the Constitution, and by any reasonable moral standard. It’s not “perverse” for her to exercise her right to control her content in this regard.

    I still think that there may be a legal case for fair use, but even if not, practically speaking, Vacula’s use of the image was fair given the lack of actual harm from using it.

    I disagree that violations of people’s rights do not constitute “actual harm.” It’s not hard to think of other ways to violate basic Constitutional rights that would cause no “actual harm,” and still present a legal/moral problem, and still are things we generally recognize as dangerous. Is any “actual harm” done by warrantless wiretaps? Does the Office of Faith-Based Initiatives do any “actual harm”? If I entered your house while you weren’t home, hung out for awhile, and made sure everything was as you left it–or even better off–before you got back, have you experienced any “actual harm”? Would my actions be “fair”?

    Part of the reason I brought up the Expelled lawsuit is that’s it’s a case where the “good guys” used a morally and legally dubious means of opposing the “bad guys,” and thus led the “bad guys” to have some moral or legal high ground that they wouldn’t have otherwise. I have no illusions that Vacula is a saint here.

    And yet, it’s certainly not in service of “promoting the progress of science and the arts.” Further, I’d say that it’s just as “morally dubious” to use a copyrighted work in a for-profit enterprise without even trying to seek permission. That they didn’t need it is beside the point, the morally correct thing would have been to seek permission as a courtesy.

    But then, Expelled pretty clearly were the “bad guys,” having relied on morally and legally dubious methods to make the whole damn film by that point.

    One thing to remember about the Expelled lawsuit, too, is that it happened before the movie was released, and thus, before many people knew what the exact content was. I don’t know if the Lennon Estate lawyers had seen the full movie when they filed their suit; if they hadn’t, then a lot of relevant questions were left up in the air, like how much of the song was used, and what context was it used in. Yes, there were other factors going into the filing of the suit, but in the absence of answers to relevant questions regarding the character of the film’s use of the copyrighted material, I don’t think it was all that “morally and legally dubious” of the estate to seek to protect the work.

    And many of the same things can be said about the Expelled/XVIVO legal battle, which treads slightly different waters with respect to fair use, the legality of derived works, and moral/legal dubiousness.

  70. says

    Scratch that. It should read, “Yes, I am able to understand. What part of what I wrote suggests otherwise?”

    The fact that you suggest that Justin’s justification is that he criticises Amy. Criticising Amy does not grant fair use to using her photo just to make his post more appealing to the eye.

  71. J. J. Ramsey says

    Giliell:

    The fact that you suggest that Justin’s justification is that he criticises Amy.

    In other words, you haven’t understood what I actually said, and you put another argument in its place. Now on to someone with whom I respectfully disagree but who has been paying attention …

    Tom Foss:

    There’s nothing in the Constitutional provision underpinning copyright law about “making a living.”

    That’s half-true. Sure, there’s nothing explicit about it, but the way that copyright is supposed to promote science and the useful arts is by providing a way for authors to make money off of their work. As the first copyright law, the Statute of Anne, put it,

    Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted …

    That’s the background against which the Constitution was written. Making no attempt to make money off a work and putting the work in a place where it can easily be copied for free, then suing those who copy the work … well, that’s not what copyright was meant for.

    Notice that this ties into the fourth factor of the fair use test, which considers the effect that unauthorized copying has on the market for the copyrighted work.

    It’s not hard to think of other ways to violate basic Constitutional rights that would cause no “actual harm,” and still present a legal/moral problem, and still are things we generally recognize as dangerous. Is any “actual harm” done by warrantless wiretaps? Does the Office of Faith-Based Initiatives do any “actual harm”? If I entered your house while you weren’t home, hung out for awhile, and made sure everything was as you left it–or even better off–before you got back, have you experienced any “actual harm”?

    Fair point, but these are also examples of where the violation of rights leads to realistic potential for future harm. Faith-based initiatives can lead to entwining of government and religion, and we know from history where that can lead. We also know from history how warrantless surveillance can be used as a tool by repressive governments (e.g. the Stasi of East Germany). If you break into my house and use my stuff, there’s a real risk that you won’t be able to leave things as they were left, despite your best intentions.

    By contrast, even the hypothetical harm from distributing one of Surly Amy’s photos of her jewelry is remote. Their market value is miniscule, in no small part because they have long since been publicly viewable for free and trivially easy to download, so Amy had no realistic opportunity to sell them anyway.

    Violations of Constitutional rights are a problem, whether or not they can be shown to cause harm.

    Not all unauthorized uses of copyrighted work are violations of Constitutional Rights or are reasonably construable as such. Furthermore, part of the test of whether such unauthorized use is a violation is a consideration of harm, especially harm to the market for the copyrighted work. Again, look at the fourth factor of the fair use test.

    the morally correct thing would have been to seek permission as a courtesy.

    Expecting critics to seek permission from those that they are criticizing is unrealistic. Would you, for example, seriously expect P.Z. Myers to seek permission from creationist Jim Pinkoski to show the excerpt from his work about “PYGMIES & DWARFS”?

  72. says

    That’s the background against which the Constitution was written.

    And it still says more about consent than ‘making a living.’ There’s no indication that the “detriment” faced by these infringed publishers is wholly monetary in nature.

    That said, the Statute of Anne stuff is pretty fascinating. Thanks!

    Making no attempt to make money off a work and putting the work in a place where it can easily be copied for free, then suing those who copy the work … well, that’s not what copyright was meant for.

    Tell that to Major League Baseball, or the Olympics, or Blockbuster Video. Granted, I suppose I’d have to pay a small fee to rent a video in order to copy it, but that’s not the case for making copies of live sports broadcasts and distributing them. And yet, the sports broadcasts make it clear that such copying and distributing–even though I have to pay no money to view them–is prohibited without express written permission. Similarly, home videos include that whole FBI warning against copying, distribution, and public screening, all because doing so cuts into actual or potential ways that the copyright-holders can make money off the copyright. The chances that Warner Brothers are going to put “Batman & Robin” back in theaters seem infinitesimal, but I’m still not legally allowed to take my DVD copy to my local theater and screen it for the public unless I want to incur the potential wrath of the FBI and such.

    Similarly, the Olympics aren’t available on DVD. NBC’s not making any money off the various events right now, and didn’t charge for the permission to view (and copy) them. But they may choose to produce DVDs of the Olympics in the future, and my recordings potentially cut into that attempt at monetization. There’s a “potential market” for those events, even if there’s not an existing market, and the law protects that potentiality.

    Fair point, but these are also examples of where the violation of rights leads to realistic potential for future harm. Faith-based initiatives can lead to entwining of government and religion, and we know from history where that can lead. We also know from history how warrantless surveillance can be used as a tool by repressive governments (e.g. the Stasi of East Germany). If you break into my house and use my stuff, there’s a real risk that you won’t be able to leave things as they were left, despite your best intentions.

    Again, if we’re considering “realistic potential for future harm,” as the Fair Use guidelines appear to, then the situation seems settled. You think it’s unlikely (perhaps unrealistic) that Amy would try selling the SurlyRamic photos, so let’s slide the analogy over a bit. Maybe you remember the “talking about feminism is not the problem” photo that Thunderf00t used without permission or credit. That was a cool artistic photo, and I wouldn’t be surprised to see Amy selling prints of it (in fact, I kind of wish she would) or selling high-definition file downloads of it that include a limited license to have prints made. Allowing others to use the non-salable photos without permission or protest may lead to others thinking that using any photos from the site is acceptable.

    And, frankly, that’s more realistic and more harmful than “you might not be able to put everything back the way you found it.”

    I can envision a realistic reason for Amy to sell the photos, which would be as a fundraiser. Buy a SurlyRamic photo for a quarter or fifty cents, so that it’s not just donations, so that you’re getting something (however small, trivial, low/no-cost to produce) for your money.

    Furthermore, part of the test of whether such unauthorized use is a violation is a consideration of harm, especially harm to the market for the copyrighted work. Again, look at the fourth factor of the fair use test.

    I’d say making dishonest allegations against the creator of the work is potentially harmful, but that’s kind of beside the point.

    But, as you say, it’s only part of the test. Is it considered “Fair Use” if it meets only one of the four criteria?

    Expecting critics to seek permission from those that they are criticizing is unrealistic. Would you, for example, seriously expect P.Z. Myers to seek permission from creationist Jim Pinkoski to show the excerpt from his work about “PYGMIES & DWARFS”?

    I wouldn’t, because PZ’s use was clearly and obviously covered under Fair Use. He reproduced only a portion of the original work, and did so to comment directly on the content of the images.

    But I imagine that he could allege that the fact that the use now shows up as hit #2 under a Google search for “Jim Pinkoski” with the subtitle “how stupid can creationism get?” has been harmful to his business. If “harm” were the only/primary consideration, then PZ would be in trouble just as Justin wouldn’t.

  73. says

    Ramsey @ 81:

    If that were the case, then Amy would be using copyright law for its intended purpose, which is to allow one to make a living producing art

    Should blog posts not be under copyright if there’s no advertising on the site? What if there is advertising on the site, but just to cover costs associated with the blog itself; that is, where the intent is to break even, not to profit? If it is my specific intent that no one—including me—make money off my work, does that mean I lose copyright protection?

    Moreover, I’m having trouble seeing this as a free speech issue.

  74. J. J. Ramsey says

    Tom Foss:

    And it still says more about consent than ‘making a living.’

    I point you to the part of the statute that reads “to their very great Detriment, and too often to the Ruin of them and their Families.” The point of the statute was to keep a publisher by undercutting a rival publisher by copying its rival’s work, a practice that made the book trade unstable. The instability discouraged publication of potentially useful works and also discouraged the compensation of authors, which in turn could discourage them from writing.

    Tom Foss:

    Tell that to Major League Baseball, or the Olympics, or Blockbuster Video.

    You missed the part where I said, “Making no attempt to make money off a work.” Major League Baseball does try to make money off the work. Among other things, it sells access rights to broadcasters who in turn use ad revenue to pay for costs of the broadcast and turn a profit. It’s a similar story with the Olympics. As for Blockbuster, again there’s an attempt to make money through rental fees.

    Contrast this with what Amy does with the photos of her ceramics. She doesn’t even attempt to sell them. They are simply a means for her to publicize the items that she is trying to sell. I already pointed out what this means as far as the fourth factor of the fair use test is concerned.

    Maybe you remember the “talking about feminism is not the problem” photo that Thunderf00t used without permission or credit.

    Tthat’s probably not a good example for you, since in that case, he did criticize and comment on the content of that photo. Amy posted a picture of a sign reading, “Talking about sexism isn’t the problem; sexism is the problem,” and in reply, Thunderf00t wrote, “YES talking about sexual harassment can sometimes be a bigger problem than sexual harassment.” You can disagree with Thunderf00t’s assessment, or with the reasoning of how he got to that assessment. (Indeed, Greta Christina had provided a decent discussion of the problems with Thunderf00t’s particular reasoning.) However, as far as fair use is concerned, Thunderf00t’s case is even stronger than Vacula’s.

    I wouldn’t be surprised to see Amy selling prints of it (in fact, I kind of wish she would) or selling high-definition file downloads of it that include a limited license to have prints made.

    But think about how Amy would do that. She’d use a low-res picture to demonstrate what either the tangible print, which she’d presumably mail, sell at a kiosk, etc., or high-res image, which would be behind a paywall. And what sort of thing did Thunderf00t or Vacula put on their blog posts? The low-res photo, of course, which Amy wouldn’t be realistically selling anyways.

    But I imagine that he could allege that the fact that the use now shows up as hit #2 under a Google search for “Jim Pinkoski” with the subtitle “how stupid can creationism get?” has been harmful to his business. If “harm” were the only/primary consideration, then PZ would be in trouble just as Justin wouldn’t.

    But remember the kind of harm that we’re talking about. Copyright protects against the harm that would result from having an unauthorized copy that competes with the legal ones being sold. In the olden days, that could happen if a publisher copied a rival’s book and sold it, perhaps at a lower cost. These days, it’s often a pirated Torrent competing with a DVD. That’s why the fourth factor of fair use considers “What effect would this use have on the market for the original?” Copyright does not protect against the “harm” done from criticism of a work, and fair use provisions are in place partly to allow for that very sort of “harm.”

    Indeed, to the extent that Vacula’s blog post has caused harm to Amy or her business, it’s been through criticism. The posting of the photo of one of Amy’s ceramics, on the other hand, cannot realistically be said to have caused any of the sort of harm that copyright law is supposed to protect against.

  75. says

    J. J., your “copyright originalism” was noted many, many comments ago. It’s still irrelevant. You want a copyright law that does, in a surgical manner, what you think it should be doing, go lobby for it. Telling Amy she shouldn’t protect her rights because you don’t like the fact that they’re granted to her is stupid. Doing it at the length and with the degree of repetition you appear to do everything is annoying.

    Vacula’s criticism clearly stands without Amy’s photo, because he reposted it elsewhere yesterday. Thunderf00t’s criticism clearly stood without Amy’s photo, because what he was talking about was her position, stated in words, which requires no photo of her hold the words. She has every right under the law to protect her photos. Live with it, or go work on getting the law changed.

  76. says

    JJ Ramsey

    In other words, you haven’t understood what I actually said, and you put another argument in its place. Now on to someone with whom I respectfully disagree but who has been paying attention …

    Yes, sir, I’m sorry, sir, I’ll just go and sit in the corner, sir.
    Let me quote you again:

    Think very carefully about what you just wrote, there. If Vacula’s use of Amy’s copyrighted images had been integral to his trash-talking of her, then there would be an even stronger case for the fair use of those images. The use of copyrighted material in parody and criticism involves using the resources of the one being criticized, whether the one being criticized likes it or not.

    So, can you explain in what way Amy’s photo added anything to Vacula’s criticism since he didn’t criticise the photo but the owner thereoff?

  77. J. J. Ramsey says

    Giliell, you apparently don’t understand that “If Vacula’s use of Amy’s copyrighted images had been integral to his trash-talking of her” is a counterfactual clause.

    Zvan, yes, it is getting repetitive, partly because I’m responding to long comments and partly because, well, SIWOTI. And yes, it can get annoying.

    On a briefer note, you seem to be saying that if the law grants a right to X, it is morally acceptable to exercise that right to X, for arbitrary X. Do you really stand by that?

  78. Forbidden Snowflake says

    On a briefer note, you seem to be saying that if the law grants a right to X, it is morally acceptable to exercise that right to X, for arbitrary X. Do you really stand by that?

    How the hell is that a reasonable interpretation of anything S.Z. said? We’re not talking about who’s in the right morally*, we’re talking about who has a case, legally. That is why your protestations regarding what the law should allow are irrelevant, as you’ve been told.

    *And if we were, I would suggest that the party who doesn’t owe Justin Vacula a goddamn thing is probably in the right.

  79. J. J. Ramsey says

    Forbidden Snowflake:

    We’re not talking about who’s in the right morally*, we’re talking about who has a case, legally.

    I wish that Zvan herself had said that outright. Instead, she wrote sympathetically of Amy’s actions, leaving the impression that she thought that they were both morally and legally justified. That was perhaps uncharitable, though, and led to some lonnnnng tangents.

    FWIW, I’m not quite a “copyright originalist,” to borrow Zvan’s turn of phrase, especially since I’m in favor of copyleft licenses, which I’m sure no Founding Father had in mind. The way I see it, copyright is a right to restrict others’ freedom, in particular the right to disseminate certain pieces of information, and engaging in such restrictions shouldn’t be done without some damn good reasons. The reasons cited in the Constitution with regard to copyright are good ones, though.

  80. J. J. Ramsey says

    Let me rewrite that to something more neutral:

    The way I see it, copyright is a right to restrict others’ freedomactions, in particular the right toaction of disseminateing of certain pieces of information

  81. Simon says

    There is a reason it’s called intellectual property.

    It is true that in a sense it restricts freedom in similar (not identical) ways as physical property. I could also make the argument that walking through someone’s lot might be easier for me than going around it on foot and that me not being allowed to do this is restrictive of my freedom. After all, the more private property owned by others the less available land for me.

  82. J. J. Ramsey says

    Simon:

    It is true that in a sense it restricts freedom in similar (not identical) ways as physical property.

    True. Bear in mind that I did say, “engaging in such restrictions shouldn’t be done without some damn good reasons.” Generally speaking, there are good reasons for the various restrictions, including property rights, and even if one can’t always articulate all of them, one can at least partly address the reasons by asking, “If we didn’t have this restriction, then what?” I suspect that Russell Blackford can probably detail these issues way better than I could, and from what I’ve gleaned from him, he’d probably start with John Stuart Mill.

    But all this takes us further afield, and I’m already trying our blog host’s patience as is.

  83. Forbidden Snowflake says

    I wish that Zvan herself had said that outright. Instead, she wrote sympathetically of Amy’s actions, leaving the impression that she thought that they were both morally and legally justified.

    That’s not what you accused her of, though. You said:

    On a briefer note, you seem to be saying that if the law grants a right to X, it is morally acceptable to exercise that right to X, for arbitrary X. Do you really stand by that?

    You accused her of claiming that anything that any means that is legal is hence also moral, not of claiming that this particular case is both legal and moral.

    It seems like what you would consider moral in this case is less restrictive than what is considered legal. Am I correct?

  84. J. J. Ramsey says

    Forbidden Snowflake:

    You accused her of claiming that anything that any means that is legal is hence also moral, not of claiming that this particular case is both legal and moral.

    When I kept harping on the moralities of Amy’s actions, Zvan seemed to defend her by pointing out that what Amy did was legal. That suggested to me that she was working from the implicit premise of “if the law grants a right to X, it is morally acceptable to exercise that right to X”, and was not thinking very carefully about whether it would hold for arbitrary X. I wanted to see her say, “No, of course I don’t stand by that. What I really believe is …,” which would make explicit some of her implicit assumptions.

    It seems like what you would consider moral in this case is less restrictive than what is considered legal. Am I correct?

    If I understand you correctly, then probably, yes. I’d generally stick to the four-factor fair use test but tend to interpret it fairly liberally. (Notice what I said about the Vacula and the fourth factor above.) I see copyright as a means to certain ends that are ultimately meant to serve the public good, so I’m not particularly sympathetic to the notion that artists have some natural right to control how their works are used.

    But again that gets me on the tangent that our blog host would rather I not go on.

  85. Kathy says

    Erm, as someone who works in publishing, if Vacula’s post had been handed to me to publish I’d have been telling him that he needed permission to use Amy’s photo. I’m not a rights expert, and tricky rights questions I forward on to our in-house rights department to check, but with this one I wouldn’t bother. The post does not dicuss the actual photo used in any shape or form, therefore it is merely decorative, and does not fall under ‘fair use for criticism or review’. It requires permission from the copyright owner to be published.

  86. Forbidden Snowflake says

    When I kept harping on the moralities of Amy’s actions, Zvan seemed to defend her by pointing out that what Amy did was legal.

    You kept harping on whether Amy’s actions aligned with what you consider to be the intent of the law, and some people, myself included, took that to mean that you found her legal case to be questionable.

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