Nothing About The Story Of An Artist Being Threatened With A Lawsuit Over A Painting Of A Small-Dicked Donald Trump Makes Sense

from the huh? dept

The Guardian had a weird story over the weekend claiming that artist Illma Gore is being threatened with a lawsuit if she sells a painting she created of a naked Donald Trump with, well, a less than average sized schlong (and I use that term, only because Trump apparently likes that word). I won’t post an image of the painting. The Guardian has the whole thing if you really feel like seeing it. But almost nothing in the story makes any sense at all.

The piece by Illma Gore, titled Make America Great Again, depicts Trump with a small penis. It went viral in February after the artist published it on her Facebook page and has since been censored on social media sites and delisted from eBay after the anonymous filing of a Digital Millennium Copyright Act notice threatening to sue Gore.

Except, you can’t file an anonymous DMCA notice. A key part of the DMCA notice process is that you need to identify the copyrighted work that was infringed, and the notice itself needs to be signed by someone acting on behalf of the copyright owner. In other words, there’s no such thing as an anonymous DMCA notice — not a valid one anyway.

Second, there’s no copyright issue here at all, most likely. Lots of people jumped to the conclusion that it was Trump or his lawyers who sent the notice. That may well be, as he has a history of being ridiculously litigious over the slightest of insults, but he has no copyright interest in what he looks like. The only way there’s a copyright claim here is if another artist painted the same thing first or, perhaps, if the painting was based on a photograph of Trump and the photographer was suing. But if it was just a regular clothed picture of Trump, I’d think that this would pretty obviously be transformative fair use from that photograph.

If it was Trump, he’d have no copyright interest at all. Potentially, his lawyers could, I guess, argue a publicity rights claims, which vary based on different state laws, but that would almost certainly fail as well. And the DMCA has nothing to do with publicity rights.

It’s possible that it was just a Trump supporter sending a bogus DMCA to get eBay to take down the image. After all, the article also notes:

… galleries in the US refused to host the piece due to security concerns following threats of violence from Trump?s supporters….


The LA-based artist has received thousands of death threats and travelled to the UK to escape the frenzy….

But if that’s the case, eBay (which has lawyers who should know this stuff) should have easily rejected the DMCA notice as invalid.

Perhaps eBay pulled the image for other reasons, and it’s just being reported as an “anonymous DMCA notice” because people (and reporters) don’t even recognize that the DMCA refers to a specific thing with specific rules. But, in the end, very little about the story makes any sense at all.

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Comments on “Nothing About The Story Of An Artist Being Threatened With A Lawsuit Over A Painting Of A Small-Dicked Donald Trump Makes Sense”

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That Anonymous Coward (profile) says:

Unless the lawyers who sent the DMCA notice put one of those you totes can’t talk about the contents of this privileged communication with anyone headers on it.

eBay might have smart lawyers, but they cost money where Becki in accounting can totally read the notices they get and remove posts. Its not like anyone will file an answer, they will just look for another way to list it and pay them another fee. eBay isn’t that well known for customer service.

TasMot (profile) says:

FUD is wonderful - the truth not so much.....

But it is so much easier to deal with the sensationalism around the FUD than to actually research the facts and shine some light on the truth (small parts or otherwise). An “anonymous” DMCA notice about a small body part is so much more titillating than the truth that there is no such thing as an anonymous DMCA notice.
Techdirt is just going to learn more about how to publish stories with half-truths in the blog in order to cause more sensations.

Ehud Gavron (profile) says:


I know, we’re having fun laughing at Donald Trump’s incredibly wee wee-wee. The legal aspects, however, interest me more than another man’s schlong*.

17USC512 does not have a “notice of takedown”, merely a “notice of claimed infringement”. Content providers have only the incentive of NOT-removing their “safe-harbor” if they take appropriate responses, of which taking content down is merely one of several options.

However, if you followed the Viacom v Youtube case you’re aware that those “safe-harbor” provisions don’t allow you to early remove a case (ala a motion for summary judgement, or as you’d see in a SLAPP cas) but rather must be litigated to its eventual conclusion/settlement.

The DMCA safe-harbor is a joke. It’s not a funny one either. Most ISPs with half a brain disregard any of the process OR fall on the other side of taking down everything (e.g. youtube). Either way, if someone is determined to file suit, they will. What you do in response to the “notice of claimed infringement” is almost irrelevant.


* Mike Masnick used it because Donald Trump uses it, so I used it in the same context. Also it’s a perfectly fine word to describe OTHER people’s private parts because “schlong” includes “long” but Donald’s would be “schshort.”

Ehud Gavron (profile) says:

Re: It never ceases to amaze me

It’s ok to call everybody else children and beneath your knowledge (“be an adult”) but then you go and bring your own personal religion into it.

But* Great Flying Spaghetti Monster, be a realist about things. It’s embarrassing when you’re dressing down everyone on this topic and have to invoke your personal deity.


*Never start a proper English sentence with a conjunction.

Uriel-238 (profile) says:

Re: Re: The expected response:

Never start a proper English sentence with a conjunction.

Listen, dimwit, How juvenile and sophomoric people act when it comes to nudity….

(I’m annoyed about our society’s hang-ups about sexuality and nudity, but I don’t think Trump’s penis size or even whether he has an intact one should be the level of our criticism of him.)

Ehud Gavron (profile) says:

Re: Re: Re: The expected response:

…and the Harvard grad says “We never end a sentence with a preposition…”

…and the Yaley says “I’m so sorry, Sir, but can you tell me where the library is at, a**hole.”

Agreed though that Trump’s wee wee-wee is of no factor in his opportunity to totally f*** up this country. You’re right on that one.



Paraquat (profile) says:

Re: It never ceases to amaze me

I couldn’t agree more with you, Dom. First there a great obsession with Trump’s hairdo. Then suddenly I saw a bunch of posts by anti-Trump folks including a photo of Melania in the nude. And now a painting of Donald’s dick. I can only guess what the next bad-taste cartoon or Photoshopped picture will be – perhaps Trump having sex with a sheep or playing with excrement.

I realize it’s very old-fashioned of me, but I think it would be nice if presidential campaigns were based on discussion of real issues.

I’m not a Trump supporter, but I have to say that many of the anti-Trump folks are willing to sink so low that they manage to make Trump look good by comparison. And that takes talent.

DannyB (profile) says:

An comparison of Trump supporters with Terrorists

… galleries in the US refused to host the piece due to security concerns following threats of violence from Trump’s supporters….

So Trump supporters are threatening violence over a depiction of their sacred prophet?

Compare to the Charlie Hebdo attack over an unflattering depiction of another group’s prophet.

So are Trump supporters acting like terrorists?

Yet in the name of protecting us from such terrorists, they want to ban people of a particular religion from entering the US.

Uriel-238 (profile) says:

Lord Farquaad

Trump’s personal insecurities do seem to be rather extreme to the point of seeming exaggerated or caricatured.

He doesn’t seem to be a particularly small guy, for someone with such a little-man complex.

Were the unthinkable to happen and Trump were to get into the oval office, his political enemies would pull him apart stomping on that button.

Unless he plans to do the dictator thing and disappear anyone that might have a critical opinion of him.

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