Did Flickr Takedown Obama Joker Time Cover Over Copyright Infringement?

from the what-was-copied? dept

Thu, Aug 20th 2009 8:58am — Mike Masnick

A bunch of folks have been sending in this story about Flickr supposedly taking down the "Obama Joker" Time Magazine cover that's been in the news lately, but I have to admit that I'm confused about the reasoning behind the takedown. There are questions of whether it's just "censorship," but I'm trying to figure out what's the actual copyright claim. The suggestion is that the concern is from Time Magazine, which doesn't like its brand associated with the falsified cover -- but wouldn't that be a trademark issue, rather than a copyright one? If there's any copyright issue at all, it would potentially (and then, weakly) be from whoever owns the rights to the original photo that was changed. But seeing as there's still an ongoing battle in the Shepard Fairey case to determine if that sort of thing is fair use and I haven't seen anyone identify the original Obama photo that was used here, it's not even clear who would be crying copyright infringement. So... where exactly is the copyright infringement here?

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Filed Under: copyright, fair use, flickr, joker, obama
Companies: yahoo

28 Comments

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Anonymous Coward, 20 Aug 2009 @ 9:04am

The artist himself has said he took a time magazine cover and did photoshop work to it to make it a "joker". He had done similar in the past to Bush (although oddly, the conservative media didn't latch onto that image).

So by the artists own admission, the first layer of the "product" is used without permission.
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ChurchHatesTucker (profile), 20 Aug 2009 @ 9:22am

Re:
"So by the artists own admission, the first layer of the "product" is used without permission."

So what? What part of 'transformative' do you not understand?
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Anonymous Coward, 20 Aug 2009 @ 9:35am

Not doing that again...
I just ventured into the comment section of the LA Times article...very bad idea. Don't ever take your trolls for granted Mike.

On the plus side, I just learned that Universal Health Care is socialism, and socialism is evil, and Canada has UHC...so Canada must be an evil socialist country!
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weneedhelp (profile), 20 Aug 2009 @ 9:36am

Re:
AC, you get it wrong again. Its a parody. SNL, MADTv, and any other sketch comedy show you can think of has done this time and time again.
http://www.youtube.com/watch?v=KhOFX9uBww4
http://www.youtube.com/watch?v=98qmflLdOpI
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TW Burger (profile), 20 Aug 2009 @ 10:37am

Fair Use is Decided by the Guy with the Most Money and Lawyers
It's parody and therefore fair use and Flickr is simply censoring. But, it is Flickr's site and they can do anything they want. Or does providing a public forum for expression not allow you to judge and remove the content as long as it is not what is generally deemed offensive or dangerous? And what is that which is generally deemed offensive or dangerous? The debate could be endless. To be honest the image's artist does not seem to have been trying to make a point and is simply an artistic exercise that went viral. It's not any (and seems less) antagonistic than the much used Hitlerized images of the President the Republican nut jobs love brandishing at their mindless, political, gun toting hate rallies. You can cut the irony with a knife.
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TW Burger (profile), 20 Aug 2009 @ 10:41am

Re: Not doing that again...
Canada is not evil. Only Ottawa and the financial districts of Toronto. Oh, and Mississauga is a suburb of Hell.
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CW, 20 Aug 2009 @ 10:52am

Curiously Flickr did not take down any of the Bush Time magazine parodies over copyright infringement, now why could that be? Hmmm...maybe its because they just don't want to hurt Dear Leaders' feelings any more than they already have.
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Anonymous Coward, 20 Aug 2009 @ 11:13am

Re: Fair Use is Decided by the Guy with the Most Money and Lawyers
It's not any (and seems less) antagonistic than the much used Hitlerized images of the President the Republican nut jobs love brandishing at their mindless, political, gun toting hate rallies.

Want to know what's most ironic about that statement?

The image was created by a Kucinich supporter - not a mindless, political, gun-toting Republican nut job.
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Clarence, 20 Aug 2009 @ 11:17am

Obama Joker
People have always come up with new and fair game use of pictures of politicians and celebrities. I'm glad we see this not as a racial issue, but Flickr has a right to take down what it pleases. It's censorship if we tell Flickr what they can and cannot put on their site, defining the use of their site for them. What they tell us is what they tell us and we can examine that all we please. The fact is that some people will be offended, some will find it funny and others will find it interesting parody. If I'm Obama, I do not find it funny or interesting, but just another sideshow of what holds the attention of the public in this viral age and deserves nothing more than to be ignored.
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Dark Helmet (profile), 20 Aug 2009 @ 11:40am

So...many....things to.....respond to in....comments...
AC#1 "although oddly, the conservative media didn't latch onto that image"

I'm sorry, the what? The WHAT!? Please tell me you're referring ONLY to establishment houses like Fox (snicker)News and Rush Limbaugh, and that this isn't a sad pathetic attempt to claim that overall the media in our country is conservative...

AC#1 "So by the artists own admission, the first layer of the "product" is used without permission."

....uh huh....and? As someone has already pointed out, if it's transformative, the use of the original work can be acceptable. Are you maybe not familiar with that concept?

TW Burger "It's not any (and seems less) antagonistic than the much used Hitlerized images of the President the Republican nut jobs love brandishing at their mindless, political, gun toting hate rallies."

My friend, hopefully by now you're aware that I'm not a fan of either party, so please take this as it's meant when I say I find it equally ironic that the most Hitlerized image of this new millenium HAS to be Prez W. Bush, and yet you made it sound as if that never happened and only right wingers can be kooky Hitlerizing SOB's. If only that were true. Sadly, both parties' extremes are rife with stupidity, although oddly, both Hitlerized images are probably closer to the truth than those people think, for vastly different reasons. Bush because of his families direct ties to the Nazi party, Nazi funds, Nazi companies, and escaped Nazis, and Obama because several of his policies mirror Nazi legislation. It's all very odd.

"I'm glad we see this not as a racial issue, but Flickr has a right to take down what it pleases"

Give it time. That whitening of the face will be up for discussion before long.
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Anonymous Coward, 20 Aug 2009 @ 11:49am

I thought it was the liberal media not the conservative media? (Fox 'news' is the exception of course)
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Anonymous Coward, 20 Aug 2009 @ 12:07pm

Re: So...many....things to.....respond to in....comments...
"I'm sorry, the what? The WHAT!? Please tell me you're referring ONLY to establishment houses like Fox (snicker)News and Rush Limbaugh, and that this isn't a sad pathetic attempt to claim that overall the media in our country is conservative..."

Reading skills, please! I said "the conservative media didn't latch onto that image" - the conservative media would pretty much everything from Fauxnews to Rush to Drudge to Christian Science Monitor, for what it is worth. I didn't suggest that all media was conservative.

The only difference is that mainstream and liberal media (each) are less likely to run with a silly image to try to destroy character, so the Bush image never really would get picked up.

Go read Drudge, and try to explain to me that he isn't getting paid by the Republican't party. It's almost disgusting.

As for the "transformative" or "parody" nature of the image in question, that would be perhaps an issue for a court of law. For all we know, the original artist asked to have it removed from flickr accounts he doesn't control.
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Oh my god!, 20 Aug 2009 @ 12:31pm

Re:
The conservative media? Dude, what dope you smoken? Something like 87% of the media "admits" to being Liberal. There were so many Joker photos of Bush, Hitler photos of Bush, so many different altered photos of Bush it was incredible. Maybe you just have selective memory. Don't you recall Bush as a chimpanzee?

You should save all your posts from the internet and then go back and read them once you have grown up. You will get a real laugh out of how ignorant you were.
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Socialism and you., 20 Aug 2009 @ 12:36pm

Re: Not doing that again...
You must be very young if you can't understand that America doesn't WANT to be socialist. Well, you do, and some other youths like you don't think anything is wrong with socialism. And Universal Health Care isn't anything I want. Just because I don't want it doesn't make me uncaring or stupid. I already have better health care than Canadians. After Obama's plan goes into effect I will have, at best, Canadian style health care.
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Bacchus Plateau (profile), 20 Aug 2009 @ 1:17pm

Re: Re: Not doing that again...
Having a public option for the uninsured and the insured with preexisting conditions is not socialism. Socialism is a form of government, not a House bill.
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Anonymous Coward, 20 Aug 2009 @ 1:22pm

You must be very young if you can't understand that America doesn't WANT to be socialist.

If America didn't WANT to be socialist, Ron Paul would be President right now.
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Marcus Carab (profile), 20 Aug 2009 @ 1:24pm

Re: Fair Use is Decided by the Guy with the Most Money and Lawyers
Flickr is free to censor whatever they want, but hiding behind a false copyright excuse is potentially illegal and certainly a fast way to alienate a lot of their users - that's the question here, not whether or not they are allowed to remove the image.
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Anonymous Coward, 20 Aug 2009 @ 2:06pm

Re: Re: Not doing that again...
Socialism.

You keep using that word. I do not think it means what you think it means.
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Anonymous Coward, 20 Aug 2009 @ 2:22pm

Re: Re:
87% of the media may claim to be liberal, but the vocal "minority" is conservative. Talk radio? 120% conservative. Air America (liberal) pretty much failed. Fox is the most watched news channel, more conservative than Ed Meese.

"You should save all your posts from the internet and then go back and read them once you have grown up"

Dude, you make posts like this ONCE you grow up and stop being baboozled by shysters, gurus, and fakers pushing "numbers" that don't add up.
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Dark Helmet (profile), 20 Aug 2009 @ 2:52pm

Re: Re: Re:
"Fox is the most watched news channel, more conservative than Ed Meese"

I could be wrong, but I don't think that's correct. It's the most watched CABLE/SATELLITE(sp?) news channel...
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jakerome (profile), 20 Aug 2009 @ 3:52pm

Flickr has a problem, and that's the way they handle DMCA notifications in general. Its standard procedure to pull down the photo upon receiving a DMCA notice. In this case it's a shame_ since I would bet the original complaint was probably filed by someone with no copyright claim. Further, the image is clearly fair use since it is transformative, critique and non-commercial.

But Flickr doesn't take any of that into account. They just mechanically remove any image that gets a DMCA notice, with no ability to restore the original image or comments.

Flickr has a problem due to the way they handle DMCA notice and the lack of a restore capability. It's got about zero to do with the subject of the photo, alrhough it is fun to see the conspiracy theorists suggest otherwise.
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Anonymous Coward, 20 Aug 2009 @ 5:43pm

Re: Re: Re:
"Dude, you make posts like this ONCE you grow up and stop being baboozled by shysters, gurus, and fakers pushing "numbers" that don't add up."

You mean like 120% of talk radio being conservative?
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Anonymous Coward, 21 Aug 2009 @ 6:41am

Re: Re: Re: Re:
Arsepick.

"You mean like 120% of talk radio being conservative?"

No, read what I posted: "Talk radio? 120% conservative.", aka, they are more conservative than conservative. As I said, "more conservative than Ed Meese".

You might want to sharpen your reading skills, you are starting to quote stuff like Mike.
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Joe Dirt, 21 Aug 2009 @ 9:55am

Re: Re: Re: Not doing that again...
Hello, my name is Joe Dirt. You killed my Democracy. Prepare to be told what you can and cannot do.
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d, 21 Aug 2009 @ 9:23pm

DMCA Safe Harbor
The Digital Millenium Copyright Act (DMCA) provides a safe harbor for web sites, like Flickr, that have user generated content. To fall within the safe harbor, Yahoo! (Flickr) must comply with certain requirements. It sounds like the company's actions are intended so it may continue to fall within the safe harbor provision. In other words, copyright disputes are often a case of he said, she said. The law provides companies a very convenient way to decide -- follow the rules/process provided in the safe harbor. Yahoo! posts its policy here: http://info.yahoo.com/copyright/us/details.html
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d, 21 Aug 2009 @ 9:31pm

Re:
The DMCA safe harbor provisions provide a very clear process to follow. Whoever filed the claim against the photo declared under penalty of perjury that they are the copyright owner. Yahoo has little choice once a complaint is filed that meets the DMCA safe harbor provisions, as provided in Yahoo's copyright reporting procedures. http://info.yahoo.com/copyright/us/details.html It is now up to the Flickr member to counter claim or work something out with the alleged copyright owner.
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Obama, 28 Aug 2009 @ 2:20pm

hmmm
They didn't take down this one... http://www.flickr.com/photos/30040318@N08/2804385836/
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edward przydzial, 28 Aug 2009 @ 11:41pm

obama joker artist exposed!!!
http://thomashawk.com/2009/08/who-is-edward-przydzial-and-did-he-issue-a-dmca-takedown-notice-over-t he-jokerobama-image-to-flickr.html
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