Four months ago, I documented the fact that Sara Mayhew had libeled Rebecca Watson. The next day, I followed up by reporting her response to that documentation. Since that time she has continued to repeat the libel.
Yesterday, out of the blue, Mayhew decided to comment on that post to assert a copyright claim on her response.
You do not have permission from me, the artist, to download and repost my art. This is a commercial website and your use of the artwork in its entirety for non-educational purposes does not meet standards of fair use. Your reproduction has the potential to impair the market for this work, by hosting it on your server and therefore discouraging traffic to the original work.
Please delete the image from your server.
I’m careful about copyright issues here and decently educated on fair use, so I was pretty sure her claim was unfounded. I went back and checked anyway, because, you know, careful. Then I laughed, forwarded the notification of her comment to Ed Brayton because I tell him about even bizarre claims about the legality of what happens on his network, and responded.
Sara, I do have permission. Even without questions of fair use, that’s very clear. This picture was posted on Facebook, addressed to me, with instructions to “pass it on to your douchey FTB Skepchick friends.” Based on your Twitter “discussions” with others, you define “FTB Skepchick friends” very broadly indeed. I did what you instructed.
The full quote on Facebook, on her public post, was:
Hi Zvan! Thanks for stalking by. Hope you pass it on to your douchey FTB Skepchick friends. Hey PZ, sorry you left reality so long ago. Have fun bashing vets on remembrance day!
Being friends with Skepchick or FtB is her go to complaint for why people disagree with her when she says ugly stuff on Twitter, which makes the audience she wanted me to share this with rather large indeed. It certainly applies to the vast majority of people who read this blog.
Then she tried a different tack:
The original facebook post was not sent to you. Regardless, it does not give anyone permission to download and reupload the artwork for commercial use. The post itself can be shared within the framework of facebook or tumblr, but cannot be downloaded and redistributed by another host.
Please take down the file from your server.
I’ll put this simply: You’re making things up. The picture stays.
There is nothing about “share this with your friends” that limits the venues in which it can be shared. In fact, I would have been unable to share her response on Facebook, because she blocked me well before she posted something addressed to me. To confirm that she had told me to post it, I had to log out of Facebook. I know about the picture because someone else alerted me to it.
Then Sara took to threats in email:
I have made the request that you delete from your server the file you are redistributing without my permission. If you continue to host my work without my permission I will contact your web host informing them you are in violation of their TOS regarding copyright.
I responded in detail this time because I was done. I had other things to do with my day.
Sara, Ed has been in the loop on this from the start. I’m simply going to copy him on this so you understand that this will be shared with our host should you do what you’re threatening to do.
1. You not only gave me permission to share you picture; you gave me instructions to do so. They’re attached to this email, in case you need to refresh your memory. [I attached a pdf of the Facebook posting.]
2. You have acknowledged this permission in the comments section of my blog today. Then you claimed that such permission would only apply to Facebook or Tumblr. This is absurd for a number of reasons I won’t bother to elucidate. If you’re curious, ask a lawyer.
3. I didn’t need your permission to use that photo. That photo was your public response (see the Facebook permissions in the pdf) to an article documenting your repeated libel of Rebecca Watson. That is a matter of public interest, and I reported it as such. The fact that you drew it instead of typing it doesn’t change that.
4. It is also a matter of public interest that you’re using unfounded legal tactics to attempt to continue a harassment campaign that’s gone on for more than a year. If you attempt to have this picture taken down, not only will it remain, but it will spread as I and others make your attempts public. I’ve already had it suggested that I contact Popehat over this. He loves blogging about absurd legal claims made for harassment purposes. This would suit his tastes. I am currently refraining, but I don’t need to continue to do so.
I consider this matter closed. Do not contact me over it again.
Emphasis added. So, of course, she promptly mailed me back. Because that’s what you do when someone says not to contact them and that they’ll make the situation public.
Again, I didn’t make any communications with you. The post does not give anyone permission to redistribute the file. You have taken an image from a post I created and downloaded it on to your device(s) and uploaded it to Freethoughtblogs.com without my, the artist’s, permission.
This isn’t simply bad practice (downloading art from Facebook/tumblr/twitter and re-uploading it to a new post), but hosting files on your site without permission of the creator is against your host’s TOS.
Any other issues you’ve brought up are irrelevant, since your blog at Freethoughtblogs.com is your personal commercial website, and not applicable to fair use for non-profit, educational, or journalistic practices.
Again, my Facebook and tumblr posts are creations which you do not have permission to download and replicate in part or whole. You are hosting a file of an image you do not have the copyright to distribute and did not obtain with my consent.
Please remove the file from your site.
Then she emailed me again.
Your website does not have permission to host the file found at http://freethoughtblogs.
com/almostdiamonds/2013/11/11/ sara-mayhews-response/ of my artwork, which has been downloaded and redistributed without my permission. As copyright holder of the image, I request you delete the file from your server(s) and cease hosting the file.
A DMCA takedown request will be sent to your hosting provider. Freethoughtblogs.com does not have permission to host the file or any of my artwork.
As a for-profit personal website, the content does not fall under fair use applicable to non-profit, journalist, or educational organizations. Regardless, as owner of the copyrighted work, I am within my rights to demand a take down of the infringing material.
Then, when I continued to ignore her, rather than file said DMCA takedown notice. She tried to leave another comment on the post this morning.
The simple fact is that Freethoughtblogs.com is hosting a file which was downloaded and re-posted without obtaining permission from the copyright holder, me. As owner of the copyright, I am within my rights to request it be deleted from your servers. Freethoughtblogs is a personal for-profit website, and not applicable to any fair use which might apply to non-profit, journalistic, or educational outlets.
Any opinions on the quality of the work are irrelevant. Svan never obtained permission to download and redistribute the file, which is required. Continuing to host the file against the wishes of the copyright holder violates freethoughtblogs.com‘s TOS with their hosting provider.
Again, please cease hosting the file on your site.
In addition to all this, Mayhew has been tweeting at me, responding to my tweets on the matter despite my having blocked her there ages ago.
Now, there’s a lot of crappy information about copyright in those comments and emails, accompanying the counterfactual “I didn’t give you permission” and the misspelling of my name, which would make it difficult to serve any legal papers on me if she really did think she had a case. However, they’re fairly common misunderstandings. In fact, Mayhew hits two of the three most common misunderstandings the Center for Media & Social impact found when they surveyed journalists, old media and bloggers alike.
• Fixed amount. They often believed that there was an absolute number out there somewhere, beyond which lay lawsuits. (This common misapprehension is reinforced by a plethora of misguided attempts, available on the Web, to simplify fair use decisions.) Examples varied: “three graphs from a New York Times Magazine,” or “two to five paragraphs but make damn sure you source and attribute and are transparent and don’t use a whole page” or “keep it under 30 seconds” or “100 words in an article and 300 words in a book.” The comments of one print journalist—“the rule in the back of my head was it should only be a few seconds”—embodied the typical rule-of-thumb understanding many articulated.
• Noncommerciality. A journalist working in public media said, “there’s an attitude that it’s more loose because it’s not for profit.” In fact, the dispositive factor in fair use is transformativeness—recontextualizing. While noncommerciality can feature in a decision, it is a secondary feature and never one that can make the difference. Furthermore, most journalism, including public broadcasting, has commercial elements.
• Market loss. Another common but erroneous belief was that the “fourth factor” of fair use—effect on the market—was key. One academic said, “Infringement on the copyright holder’s ability to make money from their original work is the issue.” While relevant up to a point and within context, this factor is not dispositive in today’s legal climate. The key concept of transformativeness will safely ensure that a new user will not sap the market for the original work, even if the owner suffers the (hypothetical) loss of a licensing opportunity.
So when Mayhew notes that I get paid for my blogging, it’s irrelevant. When she claims that my posting damages her ability to make money with the post, it is as irrelevant as it is absurd. (If you want to protect your commercial interest in an image, do not put it in a public Facebook post. “When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).”)
Mayhew should understand the transformative part of fair use. It’s what allows her to claim copyright on the picture in the first place, despite its lineage. Her image was originally a frame in this video (3:11 timestamp):
Then another artist changed that image by moving the upraised finger to the center and posted it to Tumblr, where Mayhew reblogged it. Then she traced over it, gave it her hair and some distorted shoulders, and raised the top of the head to provide her trademark forehead extension, like so:
Then she drew in a supportive crowd in the background and stuck the final product on a “postcard” with an insulting message to produce the final image.
While the tracing isn’t going to do Mayhew’s image as an “international award-winning mangaka” any favors, it doesn’t violate anyone’s copyright. Her image doesn’t exist to entertain an anime audience, either in video or across the web. It stands as an insult to me for reporting on her libel and to PZ for unpacking the concept of honoring veterans. That, rather than the cosmetic changes, is what “transforms” the work for the purposes of copyright. It is legally fair use.
The Center for Media & Social Impact also identifies seven principles and limitations for the use of materials under copyright that are generally shared across journalists. Two of them apply to my use of Mayhew’s image.
PRINCIPLE: Fair use applies when journalists use copyrighted material as documentation, to validate, prove, support, or document a proposition.
The postcard image was used to document my statement that “Mayhew didn’t like having the actual story behind ‘ugly Jew’ made public.” This principle requires that as little copyrighted material as possible be used to support the proposition in question. However, Mayhew did a remarkable job creating an image to vent her spleen. The inclusion of the whole was required to show much work she put into the project, which demonstrated the depth of her feeling.
PRINCIPLE: Fair use applies to illustration in news reporting.
Even if Mayhew had included a message reacting to the charge of libel to go along with that postcard, it still would have been–as an act of gall–so remarkable as to warrant inclusion. People like me reporting on the situation with harassment in the skeptical movement have faced a great deal of minimization of both the hostility displayed toward people like Rebecca Watson and the degree to which that hostility has motivated charges of Rebecca and others being “unskeptical” or libel like Mayhew’s. That postcard makes such minimization much more difficult. It has immense value as an illustration of the problem.
Those two uses are what make my inclusion of her picture in that blog post fair use. They transform the work from a bratty “fuck you” to documentation and illustration of a problem I’ve been reporting on for quite some time.
Mayhew has no legal grounds for demanding the removal of that picture. If she files a DMCA takedown notice, I’ll file a counter-notice, and I will prevail. I think she knows this too. That’s why she’s continuing to threaten me rather than taking action. This is just one more piece of her harassment and libel campaign that has carried on for more than a year.