Patterico's Pontifications

1/9/2010

Patterico Receives Purported DMCA Takedown Notice from Photographer

Filed under: General — Patterico @ 10:53 am

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:

Hello,
 
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
http://www.digital-photo.com.au/2008/09/20/american-presidential-elections-and-dirty-tricks
and
http://www.digital-photo.com.au/v/People/Street+Photography/Shoeshine_homeless_and_woman_client_MG_6348-27.jpg.html
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 ted@digital-photo.com.au 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.
 
Ted Szukalski
January 9th, 2010

So you can understand what he’s talking about, here’s the photo:

Obama Shines Palin Shoes

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.

Mr. Szukalski,

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.

Yours truly,

Patrick Frey
patterico.com

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.

Yours truly,

Patrick Frey
http://patterico.com

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.

UPDATE x2: Thanks to Instapundit for the link. Also, check out copyright lawyer Ben Sheffner’s argument that my posting the picture was a classic example of fair use.

61 Responses to “Patterico Receives Purported DMCA Takedown Notice from Photographer”

  1. Can we think of anything what sounds gayer than “digital millenium”?

    This could take awhile.

    happyfeet (e9e587)

  2. I wonder if he tried to do this with every blog that posted the picture (which I assume would have kept him very busy), or every person who passed it on in an email (nigh unto impossible). If not, I wonder what his criteria were in judging who to send the takedown notice to.

    Now that we know where the original base photo was from, is there anyway to try to trace where it went to reappear as the photoshopped image? Asking from ignorance, I barely keep my computer using the web without slowing down, let alone understanding the possible footprints those electrons leave as they buzz around the earth.

    FWIW, not that you need my feedback, I thought that was a nice example of a firm yet friendly-toned letter.

    MD in Philly (d4668b)

  3. BTW, does anyone remember the TV show “Max Headroom”? I barely looked at it as I could not get the point. (Maybe nobody else did either). I wonder if reality has followed after art at all.

    MD in Philly (d4668b)

  4. Like Patterico noted, Mr. Szukalski is angry at the way his photograph was misused. He left a comment to that effect on one of the earlier threads.

    nk (df76d4)

  5. Max Headroom guy was in Watchmen. He just never not gets work.

    happyfeet (e9e587)

  6. I should note that the “lawyer letter” part of this was written by another lawyer who does not want to be named.

    Patterico (c218bd)

  7. If this were a photoshop of Howard Dean shining Sarah’s shoes, how would anyone be able to characterize it as anything but a look at Dean’s future job.

    I see plenty of whites shining shoes at airports and other places these days, because of Obama’s economic policies. I fail to see any sign of racism, just because Obama is half black.

    Good one Patterico, stand your ground.

    bill-tb (541ea9)

  8. Whether the Photoshop is racist in nature or not is subject to debate, which is the whole point of this being Fair Use. I understand his position, but to demand the genie be put back in the bottle is just wishful thinking.

    Stashiu3 (44da70)

  9. Why is the guy going to all this trouble ? One reason might be a lot of free publicity (except for the fee for the original letter).

    Speaking of racism, Harry Reid stepped in it big time. These people are clowns !

    Mike K (2cf494)

  10. Your response could have been two words: “Bite me”.

    PatriotRider (1729de)

  11. Does the original e-mail actually say “shinning?”

    Crusty (2fb454)

  12. I think the Australians say, “Piss Off!”

    PCD (1d8b6d)

  13. Does the original e-mail actually say “shinning?”

    Indeed it does.

    Patterico (c218bd)

  14. #8 Stashiu3:

    but to demand the genie be put back in the bottle is just wishful thinking.

    I’m thinking he might have a case, if he can find where the photoshopped version originated.

    Against anybody, not so much.

    EW1(SG) (edc268)

  15. Senate Majority Leader Harry Reid of Nevada described then-Sen. Barack Obama as “light skinned” and “with no Negro dialect.” Obama is the nation’s first African-American president.

    Mike has the link above. #9

    Thank You Harry for displaying your true colors, the Mormons are even tiring of you.

    Harry will also be losing his seat come fall. 70% of those that will get to vote him out do not like him anymore, if they ever did.

    sorry for the hijack.

    *********

    Good job with the Shiner!

    TC (0b9ca4)

  16. Hey, that shoeshine guy in the original looks exactly like me.
    As a professional small business entrepreneur I’d resent having some know nothing do all the wrong stuff knucklehead’s picture superimposed over mine.
    Shoeshine guys know more about business than Obama Geithner and Summers combined.

    By the way, to me the photoshop is not racist.
    By itself it is provocative.
    The intent of the photoshopper may have been racist, but everyone will see it through their own lens.
    How individuals interpret the image says more about that person than the photoshop does.
    Predictably, Patterico saw racism.

    I saw a poorly photoshopped, amateurish but provocative guerrilla piece that trolled the twin baits of racism, and outrage.
    Rising to take either or both of those baits was a choice.
    Why not just identify it as “bait”?

    When white conservatives who are in the public view are baited and confronted with this type of guerrilla “art”, they often appear to feel like they need to reassert their anti-racist bona fides.

    I think this type of stuff should be treated to art gallery geekspeak and turn it back into the mushbrained nonsense that spawned it.
    It’s as racist as you want to think it is.
    Look at it long enough and you’ll see whatever you want it to be.

    Personally, if I want to stare at it and catalogue my internal assessments, I’d have to say the photoshop reminds me of a Ted Rall cartoon.

    SteveG (909b57)

  17. Before the Aussie gets trampled too harshly here (too late), please understand he has zero interest in US politics and he is deeply offended by his Aussie work being used for US political reasons. And I respect him for that.

    Does he have copyright grounds here? I think not, but that does not change the fact he has a right to be deeply offended his work has been altered and used in this manner.

    Is he seeking fame, glory (or even notoriety)? I think not. I believe, based on what I read on his site when this whole thing opened up on Patterico, that he wishes his work to be free of US politics altogether. His perspective is not a “look at me” perspective but rather a “quit using me for your fun and games” perspective.

    So I would suggest caution in heaping insults onto the photographer — insults that are wholly inappropriate in my mind. I fully understand his position and his desire to remove his work (tainted by others) from the US political blogosphere. And I fully understand his attempt to do so. While I agree the photoshopped photo fits into “fair use” standards in this case, I have to wonder if the original photoshopped usage is, indeed, a copyright infringement, US Judges (on Obama’s image) notwithstanding.

    Again, I believe Patterico’s usage of the copy of the photoshopped image to beat down an idiot who used a copy of the photoshopped image amounts to “fair use”. But I also believe trashing the photographer who only wants to keep his intellectual property is a fool’s game. Trash the photographer and you lose a bit of my respect in this matter. Disagree with him, sure, he’s wrong in this situation. Feel for his situation, sure. Trash him and become an idiot.

    John Hitchcock (3fd153)

  18. While Patterico’s posting of this picture is fair use, I believe the photoshop itself is a copyright violation, because the resulting image is an unlicensed “derivative work.”

    Official Internet Data Office (2748b2)

  19. I believe that Rush was actually a shoe shine guy back when he was quite young. So what’s the problem?

    Dmac (a964d5)

  20. Dmac, here the problem is “who owns the rights to that picture” and “how is that picture used” and “did the owner permit its usage”. It isn’t in what the picture purports to show.

    John Hitchcock (3fd153)

  21. WTF copyright – this is not his picture. He is free to show his original, except he hasn’t got one. Well, he has HIS original, that looks somewhat like this, but this isn’t his. Perhaps he needs to go looking for the person who created this image, and assert that it was created using his prior artwork.

    Perhaps he’s just batshit crazy cause he loves the ‘O’ and hates the Palin.

    Anyway you look at it, he is now garnering all the attention he didn’t want. Smarter to just keep quiet – then this would blow over. As it is, he is keeping thie in the news singlehandedly – probably not his intentions.

    Bill Johnson (ffca72)

  22. Mike K and TC….
    If Reid had tried to explain it away as a “light-weight” covering instead of color, he would have been 100% accurate and be in just as much trouble with the WH –
    for Teh One certainly is thin-skinned, regardless of its’ color.

    AD - RtR/OS! (946807)

  23. For those wanting to discuss the Reid kerfuffle, I have posted on it. See the main page.

    Patterico (c218bd)

  24. Personally I think the photoshop version is much better than the original. I think the dude should have quit while he was ahead, instead of looking like some outback yahoo trying to extend his 15 minutes….

    JoeC (50684c)

  25. Bill Johnson, you have no idea what you’re talking about RE: the photographer. You have no idea because you didn’t even attempt to read what he wrote on his own site. You, sir, are a fool.

    And, JoeC, you can add your name to Bill Johnson’s name in the category of fool. Mr Szukalski is not looking for fame at all out of any of this. He is, rather, desirous of keeping his photograph (altered or no) out of the political mess someone else put it in without his permission.

    Quite frankly, I believe Mr Szukalski is wrong, but honestly so, in his take-down notice. I also believe Mr Szukalski has every right to be enraged that his work was demented and used in such a political fashion, especially since Mr Szukalski has zero interest in US politics. No, I would not take down the photoshopped photo in this instance. But, yes, I will call Bill Johnson and JoeC idiots for not even attempting to view the photographer’s position at all.

    Again, people, before you make yourselves look like the total idiots you may well be, do examine the photographer’s viewpoint and his stated position on this matter (which easily predates Patterico’s posting of the photoshopped image). Do take his long-stated position in mind. Doing so would be in alignment with wisdom. Refusing to do so would be in alignment with foolishness.

    John Hitchcock (3fd153)

  26. Patterico’s response is dead on.

    SPQR (26be8b)

  27. Was LGF also served such a notice?

    Chuck Roast (a2e8b0)

  28. ^heh. Funny, considering Chuckles keeps threatening to sue Gateway Pundit, so a DMCA letter to him would be sweet irony.

    eddiebear (a2b631)

  29. Yes, the photographer may have some copyrights to this image, but unfortunately for him, those end where everyone else’s First Amendment rights begin. The faces added to this photograph happen to be political public figures and again because of the nature of the photograph, they don’t have rights to publicity and privacy, either.

    Oh, and the reason you received the letter from Mr. Photographer and not his lawyer is because he doesn’t have enough money to pay a lawyer to chase this. I don’t think his lawyer thinks he has much of a leg to stand on. Keep the photo.

    Concerned Citizen (b22f9a)

  30. Does the original e-mail actually say “shinning?”
    Indeed it does.

    Groundskeeper Willy: [gasps] Boy…you read my thoughts! You’ve got the Shinning.
    Bart: You mean “Shining”.
    Groundskeeper Willy: [sotto voce] Shh! You want to get sued?

    ObeliskToucher (6a3a6f)

  31. This is why it was vitally necessary for news sources to actually print the Danish cartoons.

    There was no way to understand the controversy without showing people what the controversy was about and the images that the Danes had published and the images that the Imams had distributed.

    Without seeing the images a person might be lead to believe that they were actually more than every so mildly insulting. Without seeing them a person might not know that there were (at least by some accounts) shocking and outright disgusting images added by the Imams.

    Synova (a98053)

  32. A thought about the take down notice…

    The photographer might be mostly after having *done something* to show that he cared about the photoshop and can so prove that he didn’t approve.

    Then he can at least say to anyone he does business with or meets socially in the industry that he took some action. So it covers his butt.

    Synova (a98053)

  33. […] It’s a question of dealing with all those freakin’ threats. […]

    Now I Know Why Most Bloggers Are, Seemingly, Attorneys. | Little Miss Attila (62389c)

  34. I followed the original kerfuffle about this pic on this blog, and thought Mr Frey handled it well (and Mr Johnson, poorly – as usual).

    But just my 2 cents’ worth about the photog’s complaint and the bashing some of you are giving him:

    I’m an Aussie too, with no legal background, and it occurred to me that perhaps Mr. S was just that p!ssed off at seeing this mutilated version of his photo all around the traps that he googled around for a way to make it stop, and “DCMA” is what floated to the top. So maybe he did a cut ‘n’ paste or some such without really understanding the legal niceties and fired it off to the higher-volume blogs where the mutilated version of his pic was being featured.

    America has a racism problem, okay – but many Aussies I know are getting jack of being drawn into it (see also the recent KFC drama). Maybe that’s the case with the photog.
    Was the takedown notice a boofheaded way to register his unhappiness? Sure it was. But to ascribe his reaction to either politics or to publicity-seeking strikes me as maybe a bit of a reach.

    Anyway – just my thoughts.

    just a lurker (eac48e)

  35. Having jealously guarded a few copyrights of my own, it’s obvious to me that some of the commenters here don’t understand the need for protecting a copyright by all means necessary (ask Bayer about Aspirin, for example); but it also makes me wonder why Patterico didn’t just reply to Mr. Szukalski, “I understand your legal need to send me this letter,” and drop it at that point: Frey gets his Fair Use, and Szukalski gets his copyright cya.

    Mr. Challeron (789402)

  36. While I understand the photographer’s position he, himself, must understand that by the time his photo actually reaches a news organization’s page (digital or print) his original photo has been photoshopped (or otherwise manipulated). That is done to crop out extraneous material, color correct an image (both for print and screen viewing which are two different venues), and often sees other changes so as to emphasize some parts of an image over others.

    That highly edited image is then given to the public for public consumption. The problem is that the public then can use that image and derive other works from it for other reasons. This has been going on since images were first being made. Public commentary on images in the form of changing the image to suit a viewpoint is a founding point of public and social discourse. Pharoahs removed the faces of previous rulers they did not like, Roman citizens destroyed images of detested Emperors after their death, and you do not have to go far into woodcut printing to find re-imaged works created with political and social commentary involved. We have gotten the Mona Lisa with a moustache and the smiley face with a cute moustache as well: the first done for levity the second to make a point on ideology, yet both are just moustaches on known images. Removing faces and replacing them has been going on at least since the first darkrooms started up and I wouldn’t be surprized to see similar from Egypt done in stone.

    If you don’t want the public to change your image, don’t agree to hand it to the public. The Mickey Mouse copyright laws are trying to stifle public creativity of work that should have been in the commons long ago and because of that we have works that are abandoned that cannot be reprinted because no copyright holder can be found. In this modern age once your work goes digital for dissemination, keeping your ‘original’ work means seeking out those who have not re-imaged it and use it ‘as-is’. Those who derive other works by altering yours are creating their own work and so long as they don’t seek profit from it or misrepresent the original as being theirs, I don’t see where there is much to do about that fair use of images given to the public for consumption.

    And that ‘original’ is no longer ‘original’ after it has been through a photo editor’s task to make it presentable to a given media type…they, too, are stakeholders for that derived work they put out as representing the ‘original’ within the confines of the color space of the presentation media and have time involved, also. Quite a bit of it, in fact. And yet it is a derived copy of an original, not the original, itself.

    Yes, those things do matter in the media world, too. Welcome to the New Media world. It looks a lot like the old media world save everyone is an editor now. Publishing, rendering an image on a screen… well there is still debate on exactly when that image becomes a real image for publication as it is processed locally on the demand of the end-user. But that is another kettle of fish, entirely.

    ajacksonian (87eccd)

  37. Why, of all the thousands of places this image is now to be seen, Patterico?

    Methinks me smells the whiff of ye olde behind the scenes LGF email in all of this, as in “Previously Big Blogger Urges Legal Strutting on the Part of Clueless Australian Photog.”

    vanderleun (444f85)

  38. “WTF copyright – this is not his picture. He is free to show his original, except he hasn’t got one. Well, he has HIS original, that looks somewhat like this, but this isn’t his. Perhaps he needs to go looking for the person who created this image, and assert that it was created using his prior artwork.”

    If it is a derivative work he’d still have a copyright interest in it. Though that wouldn’t allow him to stop fair uses.

    imdw (de7003)

  39. Why would I not be at all surprised to learn that Ted Szukalski is a member in good standing at LGF?

    Stephen Macklin (f552f7)

  40. […] Patterico discusses a request to take down the photoshop of Obama shining Palin’s shoes (BTW, the same person left a comment in one of my posts, but, did not ask for it to be taken down. I offered to remove it if asked. No response) […]

    Sorta Blogless Sunday Pinup » Pirate's Cove (368bcc)

  41. @#35 “Mr. Challeron”:

    You are confusing two separate areas of law: trademark and copyright. The owners of a trademark (a word or symbol that identifies a product or service) do have the obligation to enforce their marks, lest they become “generic” (your Aspirin example). But no similar obligation falls on copyright owners; they are free to pick and choose whom to target in their enforcement efforts. This situation with Szukalski involves only his efforts to enforce his copyright in the photo.

    Ben Sheffner (2d68f4)

  42. John Hitchcock,

    “I also believe Mr Szukalski has every right to be enraged that his work was demented and used in such a political fashion, especially since Mr Szukalski has zero interest in US politics.”

    But sometimes rage is self-destructive. If Mr. Szukalski had never escalated this matter, few if any would associate the controversial picture with his work. In fact, even if I had seen them side by side, I might not have guessed that the one was a photoshop of the other. I only know it because he brought it up. If the photoshop devalues his work, he is making that worse by making more people see the devaluation.

    And for what it’s worth, the photoshop looks kinda shabby to me, while Mr. Szukalski’s original has something about it. I can’t put my finger on it, but I see something gritty and real in his photo. He did a nice job.

    Martin L. Shoemaker (214d51)

  43. Okay. I got it. It’s racist for some anonymous no-body to imply that The Community-Organizer-in-Chief is a shoe-shine boy, but it;’s okay for a former President to call Him an intern only worthy of fetching coffee for His betters. (Well, Bill Clinton is a bit of an expert on interns and what they do…)

    Whatever.

    Raoul Ortega (90d8ce)

  44. Did the two subjects of this photo sign a release for it to be used for commercial purposes? Will the photographer be receiving letters from their lawyers?

    Neshobanakni (271a65)

  45. Patterico’s post has generated some interest and a number of varied comments. I have decided to add this simple post, which may clarify for some of you my position.

    Yes, I too think Patrick’s reply was “spot on”. That is part of the process. He has the right to answer my notice and I have not questioned his right to do so. I am not here to deny anyone their rights. I have considered Patrick’s reply, have done some research and indeed he may have “fair use” right to use this image. “Fair use” typically is associated with partial use of copyrighted material with appropriate accreditation. I have forwarded an email to Patrick, where he can add such accreditation / captioning and put the whole story to rest.

    The simplicity of this ends here, what follows is not as simple.

    The image presented here is an unauthorized, unlicensed derived work based upon my copyrighted photograph, another words a plagiarism. Contrary to some expressed opinions, unauthorized and unlicensed plagiarism does not constitute a new, unique, and legitimate art. Similarly to Patrick, I do not really want a legal process, as it does not serve any purpose I am interested in. However, for these interested, please read this article http://en.wikipedia.org/wiki/Derivative_work

    Presence and notoriety of distribution of this image provides unjustified legitimization to this plagiarism, if it is not accompanied by appropriate, descriptive captioning to show it for what it really is. This point also addresses question of “why now” and not during the election, where this image was forwarded by email in considerable numbers. The answer is actually included in the previous sentence. Until recently, this image was distributed mostly by email, thus invisibly to me. Very few sites hosted it, or very few sites, which hosted it, were indexed by image search engines with sufficient content added so they can be found by use of identifiable keywords.

    People searching for this image, because they have heard the story, may find a number of versions of it present on the Internet websites. Some of these images imply I am the author of this altered image. I am not. Many websites chose to use text instead of the image for the story. They used descriptive similar to this sentence: “photoshopped photograph of Obama shining Palin’s shoes”. Since they do not qualify, who did the “photoshopping” or that this activity was carried out without my authorization or license and they do not accredit and caption accordingly my original work, it still leaves interpretive doubt as to who created this image (thus leaving the possibility that I have).

    I have not singled out Patterico. Patterico is the only site that chose to publish the DMCA notice. I have asked numerous sites to remove this image. Majority of sites involved have complied with my request. After few simple emails, some of them pointed me to DMCA form and thus this is what I have used since (in good faith). I am not here to “get” Patterico or any other web site or company. I have not used a lawyer, as I did not think it is justified for the purpose I wish to achieve.

    And here we arrive to my reasons why I would like this plagiarism of my photograph removed.

    1. As long as this image can be found on many sites without proper captioning and accreditations, many people consider me as its author.
    2. This image is an unlicensed, unauthorised plagiarism of my photograph and does not deserve any legimatization.
    3. Its content (because of lack of proper captioning and accreditations) may imply I have views and comments on political and social environment in USA, which polarise and enrage the viewers. I do not hold any views on USA’s social and political environment, as I do not know them. I have never been to USA and I do not follow political or social scene in USA.
    4. I receive hate mail and I am being called racist because of the content in this plagiarizm.
    5. Many viewers of this image regardless of the location of articles it accompanies do not differentiate between me, as the author of the original photograph and the author of this authorised plagiarism.

    Therefore, this is why I have gone public by adding comments to posts containing this image. People need to see the original work and clearly distinguish my authorship from the plagiarist. There are no other hidden, sinister agendas to my action. If anyone thinks I am sicking my “15 minutes” think again – this image involuntarily places my name in bad light – just look at responses associated with it.

    PS: I do make spelling mistakes, I apologise for these. Although reasonably fluent, English is my second language.

    Ted Szukalski (f3ca8e)

  46. Ted, you’re a hell of a lot nicer and more reasonable than most people sending take-down notices. While your work was screwed with and you should be irritated and try to correct the record, sending notices like that can easily inspire people to oppose you. Even if it’s unfair.

    I’m glad you and Patterico are handling this like intelligent gentlemen. Sorry you got screwed. At least you realize that those commenting on and thus displaying this ‘plagiarism’ did nothing wrong here.

    Dustin (b54cdc)

  47. Mr. Szukalski,

    In my reply to you, I expressed, I thought, some understanding of why you were upset by the use of your image. That is one reason I responded politely instead of rudely.

    You may very well have a decent request. But it’s hard to respond to it as long as there potentially remains some kind of implicit legal threat out there.

    So why don’t we start over? Leave a comment or write an e-mail that explicitly says you are not considering any legal action against me, and that it was a mistake to suggest otherwise — but that you have a request for me to consider. (I think you’ve almost done that but I’d like it to be clearer than it is.)

    Treat me like a person rather than a hostile adversary and I will consider your request seriously.

    But it has to be clear that I’m not doing anything in response to some legal threat. As long as even the slightest hint of a threat remains, I will do nothing.

    Fair enough?

    Patterico (9b946d)

  48. Ted Szukalski,

    I hope you and Patterico work this out and I agree it’s a shame someone photoshopped your work. I also hope you find out who did it.

    And don’t worry about your English. It’s excellent.

    DRJ (84a0c3)

  49. Patrick, I am not contemplating any legal action against you and I am looking forward to an amicable, non legal solution.

    The DMCA notice was to flag to your attention the image in question breaks the copyright not your usage of it here.

    Ted Szukalski (f3ca8e)

  50. Very classy, Szukalski. Most admirable.

    SPQR (26be8b)

  51. Separate from the copyright issues with this image, but somewhat related, Adobe could certainly have a field day with the multiple transgressions carried out here against its PHOTOSHOP brand!

    jaymaster (996c34)

  52. Fair enough, Mr. Szukalski. What is it you are asking me to do, to address your concerns that people think you created this picture? I think it’s a legitimate concern and I will consider any reasonable request you make.

    If I understand you correctly, I think you would like me to add some sort of update to the posts where I have used the Photoshopped picture, to ensure that people know that you did not create the Photoshopped version, and to link to your original version so that people can see the difference.

    Is that what you would like? Because that seems like a fair request.

    Not legally required, of course. But fair.

    Patterico (c218bd)

  53. Patrick, such caption under the image would indeed address my concerns.

    Ted Szukalski (f3ca8e)

  54. seriously, why do people like this think they can scare a lawyer?

    A.W. (b1db52)

  55. I think you should take down the picture, Patterico. As a courtesy. Just leave a link to wherever this picture is to illustrate your point. There’s no need to perpetuate the violation of this man’s copyright, and the photoshop racist’s intended Streissand Effect, fair use or not.

    nk (df76d4)

  56. The photograph shows a man shoe shinning woman’s shoes in Sydney Australia,Pitt Street

    Bart: What’s haggis?

    Willy: [gasps] Boy…you read my thoughts! You’ve got the Shinning.

    Bart: You mean “Shining”.

    Willy: [sotto voce] Shh! You want to get sued?

    =darwin

    Darwin (ad1429)

  57. […] face on the shoe shiner and Sarah Palin’s face on the woman.This led the photographer, to file a takedown notice with a blogger, Patrick Frey of Patterico.com, to have the image removed. This despite the fact that Frey was […]

    When NOT to File a DMCA Notice | PlagiarismToday (065448)

  58. Mr. Frey,
    In summary of this posting and discussion I would like to retract the DMCA notice (published above), as it is clearly not applicable to you as an individual.
    Additionally, and irrespectively of the DMCA retraction, I would like to assure you I have no legal issues with you personally or Patterico.com website in regards to the use of the image, which was the subject of this DMCA notice.
    I would also like to ask you to caption the image using wording to the meaning “This image is an unauthorised alternation of original photograph by Ted Szukalski” linking the words “original photograph by Ted Szukalski” to http://www.digital-photo.com.au/v/People/Street+Photography/Shoeshine_homeless_and_woman_client_MG_6348-27.jpg.html
    I have outlined the reasons behind my action extensively in the post above for all to see. At no point I intended to censor your opinion of this image or the issues discussed in relation of this image.

    Regards,
    Ted Szukalski

    Ted Szukalski (e5d1fb)

  59. Nice when two people can work in good faith to sort things out. I don’t know Mr. Szukalski but I am not surprised at Patterico, he is a gentleman.

    Machinist (9780ec)

  60. Thanks, Mr. Szukalski. I’ll consider your request. I’m sure we can work something out that addresses your concerns. If I haven’t done something by the end of the week, feel free to remind me.

    Patterico (c218bd)

  61. […] go, I sent this form to a number of web site owners. One of them is Patrick Fey of Patterico.com. Patrick replies to my DMCA notice, declining to remove the photograph, pointing me to “fair use” under the copyright act. The whole exchange between me and Patrick […]

    my good name copyright act dmca and plagiarism - digital photography by Ted Szukalski (539d67)


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