Once again, someone is misusing copyright law to squelch speech about a public controversy.
I won’t be backing down.
Yesterday I received the following e-mail:
NOTICE OF COPYRIGHT INFRINGEMENT IN ACCORDANCE WITH THE DIGITAL MILLENNIUM
COPYRIGHT ACT (DMCA)
In accordance with Section 512(c)(3)
The copyrighted work at issue is the text that appears on
The photograph shows a man shoe shinning woman’s shoes in Sydney Australia,Pitt Street
The URLs where our copyrighted material is located include copied and plagiarised without authorization photographs at:
http://patterico.com/2010/01/01/charles-johnson-denounces-the-right-wing-racism-of-a-picture-forwarded-by-a-democrat/. (Obama/Palin shoeshine plagiarism)
You can reach me at email@example.com for further information or clarification.
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
January 9th, 2010
So you can understand what he’s talking about, here’s the photo:
This is a Photoshop, created by someone else, of the photographer’s original photo, which you may view at this link.
I posted the Photoshop in this post, to comment effectively on a controversy regarding whether the photo was racist, and whether Charles Johnson was correct to allege that it was an example of “right-wing racism.” My posting of the photo was fair use. I won’t be taking it down, and I have told the photographer so.
Here is what I just sent the photographer in reply.
I won’t be taking the photo down.
If I gave you a formal, legalistic response, it would look something like this:
Dear Mr. Szukalski:
I have received your e-mail of January 8, 2010 at 2:55:09 PM PST, which purports to be a notice sent pursuant to Section 512(c)(3) of the DMCA. While it is not clear what your e-mail actually seeks, to the extent it demands that I remove the image located at http://patterico.com/files/2010/01/Obama-Shines-Palin-Shoes.jpg, I respectfully decline. As is clear from the discussion at http://patterico.com/2010/01/01/charles-johnson-denounces-the-right-wing-racism-of-a-picture-forwarded-by-a-democrat/, the photograph was posted to comment on the controversy surrounding it. As you know, the issues raised by the photograph (which is significantly altered from the version in which you claim ownership) have sparked lively discussions in the blogosphere about racism and related matters. The posting of the photograph is thus a classic example of a non-infringing fair use under U.S. copyright law. See 17 U.S.C. § 107 (“reproduction…for purposes such as criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright.”).
I also must remind you that Section 512(f) of the DMCA provides a cause of action, including damages and attorneys’ fees, against “[a]ny person who knowingly materially misrepresents under this section…that material or activity is infringing.”
I trust that this ends this matter.
Mr. Szukalski, if I were to send you a “lawyer letter,” that’s how it would read. As it happens, though, I prefer not to speak in legalese. So I will simply say this to you:
I understand that you’re not happy that your photograph was dragged into the middle of a political controversy in another country. I gather that you’re not happy about the way your photograph was Photoshopped.
But I didn’t Photoshop your photo. I commented on a controversy about whether the Photoshop was racist. There was no way for me to make that comment as effectively as I did without showing readers the Photoshop. My commentary was fair use under U.S. copyright law. I have a right under our First Amendment to comment on public controversies in this manner. As a result, I won’t remove the image.
P.S. I note that you seem to claim that your copyright notice is on the Photoshopped version of the photo that I published. If that’s what you’re claiming, you’re wrong, as you can verify by clicking on the link that you provided in your purported DMCA takedown notice.
I’ll let you know if I hear anything in response.
UPDATE: I should note that the “lawyer letter” part of this was written by another lawyer who does not want to be named.