from the this-should-be-low-key-and-uneventful dept
The internet is filled with meritless cease and desist letters. Some are simply obeyed because people see legal letterhead and panic. Others are fought more vigorously, much to the dismay of those sending the C&Ds, as the fallout is almost always completely negative.
Some C&Ds are just sent to the wrong people — people whose primary plane of existence is the internet. These are the worst of all (for the senders). It’s perhaps too much to ask that lawyers and their clients do a little research before firing off a cease and desist letter. But a little knowledge goes a long way. You may think you’re just smacking down some clueless IP “thief,” when in all reality, you’re jabbing a stick into a hornet’s nest, along with most of your arm.
Richard “Lowtax” Kyanka of Something Awful just received a C&D (posted below) from an IP law firm representing photographer Mia McPherson. Those of you familiar with Something Awful will be familiar with its feature, Photoshop Phriday, which is a weekly collection of themed image manipulations.
Those of you familiar with Something Awful’s response to legal action will recall the utter destruction of cartoonist Donna Barstow, who claimed the site “stole” her cartoons. The cartoons in questions were posted in a forum dedicated to the commentary on political cartoons. As such, the posting of the cartoons is considered fair use. This didn’t stop Barstow from wandering all over the internet digging holes for herself, making a lot of noise about copyright and theft, while ignoring the fair use aspects staring her directly in the face.
This promises to be no different. Even if Something Awful’s case might be a little weaker than its joust with Donna Barstow, there’s no indication that it will let this C&D slide by without extensive comment.
Here’s the text of the C&D (also embedded below).
Dear Mr. Kyanka:
We represent Mia McPherson with respect to certain intellectual property matters. Ms. McPherson is a wildlife photographer located in the Salt Lake City area. Recently we viewed your website at http://www.somethingawful.com/photoshop-phriday/put-butts-things/4/ and were surprised to see one of Ms. McPherson’s photographs in an article entitled Put Butts on Things! by Andrew “Garbage Day” Miller. Ms. McPherson’s photograph had been altered to remove her copyright notice and a butt was placed over the red-tailed hawks face. A copy of infringing image is attached hereto. Also attached, is a copy of Ms. McPherson’s photograph including the copyright notice.
Ms. McPherson is very selective as to those who are allowed to use her photographs and she has not approved of the use of any of her photographs on your website. The unauthorized use of our client’s photographs constitutes copyright infringement pursuant to 17 U.S.C. §§ 101 et seq. Pursuant to the Copyright Act, Ms. McPherson is entitled to damages for the infringement. Moreover, removal of her copyright notice is a violation of 17 U.S.C. § 1202.
To resolve this matter amicably, we must demand that you remove the infringing material ‘from the website immediately. Additionally, we must also demand that you provide compensation to Ms. McPherson in the amount of $1,250.00 per infringing photograph, plus $2,500.00 as the statutory minimum for the removal of Ms. McPherson’s copyright notice.
Additionally, we will require a written agreement wherein you agree not to copy any of her photographs in the future without her express written consent. Additionally, please consider this letter a demand for an evidentiary hold on all documents, whether in hard or electronic form relating to the above-referenced website and the use of Ms. McPherson’s photographs. Any destruction of evidence after the date of this letter will be judicially pursued with a request for sanctions and all other remedies agreed to by the Court.
We look forward to your response within 10 days of the date of this letter. Should you wish to discuss this with me please contact me directly.
First off, while Something Awful may be hosting the image, it was submitted by another user. This isn’t quite the same as posting an image in the forums (where it’s hosted by a third party service). Something Awful staff actually have to upload the image themselves to the website, which likely decreases any protections it might have under the DMCA’s safe harbor provisions.
The removal of the image probably wouldn’t have been a problem (although I imagine SA would still have fought that demand on principle), but the IP firm and the photographer are pursuing damages. One has to wonder how exactly a butt photoshopped onto a photo by someone else diminishes the market for the original, but that sort of questioning gets you nowhere. Fortunately, the law firm chose not to employ the exaggerated (and often, just plain wrong) verbiage Mia McPherson does when discussing infringement.
McPherson obviously has a problem with people “stealing” her photos. She has an entire section dedicated to copyright infringement at her studio’s website. She also has a problem with anyone altering her photos. A long post dealing with a redditor who makes “animal mashups” for fun contains these sort of phrases. (Link to photo she’s discussing here, which I had to pull from the page’s coding itself — right-click is disabled everywhere.)
Why did I feel punched in the gut? Look carefully at my Short-eared Owl image, notice any thing odd about the face? The quality of the background? I sat at my screen fuming because some person had taken MY image without my permission and digitally manipulated it. What this copyright infringer has done is illegally create what is called a “derivative work“. This is what the U.S. Copyright Office has to say about derivative works:
“How much do I have to change in order to claim copyright in someone else’s work?
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent.”
While Arne Olav (the redditor who created the animal mashup) definitely used McPherson’s photo without permission, he made no claim to the copyright nor did he preemptively declare it a derivative work. As McPherson notes, he didn’t even strip out her watermark.
She then hunted down the original photo of the second animal combined with her photo of an owl (a baby tapir) and then makes this claim:
I won’t post the actual photo here because… well that would be a VIOLATION of copyright laws.
Well, except that it wouldn’t. It would be used as part of her commentary on the “theft” of her photos and would be clearly utilized for illustrative purposes. She could have almost definitely used it, but she doesn’t seem to recognize that fair use exists. Her photos’ appearance anywhere else on the web is automatically assumed to be infringement (which she repeatedly calls “theft”). She continues:
Please bear in mind that Arne Olav flipped the image horizontally before he stole the head of the baby Tapir and mashed it up with my owl.
Flipped the image??!! The horror… Somehow this is presented as being equally as wrong as using the image without permission.
It’s a good thing McPherson has hired an IP law firm to represent her, as she seems a bit clueless as to how Reddit actually works. (Speaking of hornets’ nests you wouldn’t want to be elbow-deep in…)
I will eventually send DMCA Takedown Notifications to Reddit to have the image removed from Arne Olav’s page there.
Arne Olav’s “page” is actually a subreddit and, like every image on Reddit, his mashups are actually hosted at third-party hosts like imgur. So, while she could send a DMCA to Reddit, to block the link, it seems like going to the actual host would make more sense, if she’s really so offended by such a use, and so determined to ignore the existence of fair use.
Back to the case at hand. Something Awful has been doing Photoshop Phriday for years, with a minimum of complaints from rights holders. (It’s not as though there haven’t been any, but the number of legal threats it has faced pales in comparison to the number of photos used.) This doesn’t necessarily mean there’s no infringement going on (although many of the submissions would fall under fair use) but that most right holders are either unaware this is happening or understand that it doesn’t have a deleterious effect on their ability to sell their creations.
McPherson, however, sees the internet as nothing more than a den of thieves. Her post also points out that she’s taking action against Pinterest and hates that site as much as she does Tumblr. (She’s got something against Google as well, unsurprisingly.) According to Chilling Effects, McPherson has sent out 14 takedown requests since 2011, most of those routed to Blogger, but Chilling Effects is hardly comprehensive, and many sites do not pass their takedowns on to that site.
No doubt Something Awful’s legal representation, Leonard J. Crabs, will post a highly entertaining and endlessly profane defense of the website’s actions. If nothing else, SA’s legal defense team (including the highly entertaining and endlessly profane Cliff Yablonski) can point to the recent legal decision that found a majority of Richard Prince’s appropriation art to be protected by fair use. If Prince can paste a someone else’s photo of a guitar across someone else’s photo of a dreadlocked tribesman, then certainly someone can ‘shop a butt across a bird’s face.
Of course, fair use is still viewed as a defense rather than an assumed right. The stripping of McPherson’s watermark can be problematic, but there would need to be some discovery directed towards when that happened (by the contributor or by SA itself) or if the watermark even was present on the “original” photo grabbed by “BaconButts” to use as the base for his/her Butts on Things! submission.
The only thing that can be said for certain is that this action won’t portray McPherson in the best light. There will likely be a very negative reaction to her demand for $4,000 to cover the “damages” caused by a silly photoshopping of a bird with a butt for a face. No doubt this will simply confirm her prejudices about the internet in general.
Filed Under: cease & desist, copyright, damages, fair use, mia mcpherson, photoshop contest, something awful