New Yorker Demands Licensing Fee To Repost 'Nipplegate' Comic On Facebook

from the well-how-about-that dept

Mon, Sep 17th 2012 9:22am — Mike Masnick

Last week, we were among many who discussed the so-called "Nipplegate" scandal, in which overly prudish (or overly busy) Facebook moderators decided that a pair of dots representing nipples in a comic drawing of Adam and Eve constituted a "female nipple bulge". Such bulges have been deemed scandalous to society (or something like that) and banned from Facebook. Again, for reference, this is the comic strip we're discussing:

The story at the New Yorker, in which they humorously discuss "Nipplegate", got tons of attention, of course. And lots of other publications (like ours) wrote about it -- nearly all of whom also showed the comic in question. Its kind of difficult to discuss the story without showing the comic so that people can understand it. In our case, we encouraged people to read the full article at The New Yorker, which is rather entertaining.

Either way, the reposting of the image in other articles discussing it seems like a rather classic case of fair use. Paul Levy, over at Public Citizen, has a writeup about the incident, in which he echoes the point I tried to make, concerning the danger of becoming too reliant on a platform like Facebook as your way of expressing yourself, when it's subject to the random moderation whims of staffers who think that a pair of dot nipples might arouse prurient interests.

However, Levy, in an aside, mentioned this:

Although the New Yorker demanded a license fee if I published the image on my own Facebook page, which I had in mind to do just to be in Facebook's face, I don't see how you can understand this controversy without seeing the image.

Levy was kind enough to share with me the email exchange about the "demand" for a license fee. A "Sr. Manager" for "Content Sales & Licensing" told him that Conde Nast has "license fees for all of our cartoons to be posted online" and offered to create an invoice for him. He responded by pointing out that he's not interested in paying a fee, but suggesting (correctly) that Conde Nast/The New Yorker's interests are clearly best served by having that image go viral, especially on Facebook, given the earlier ridiculous moderation.

The licensing woman would not budge:

Yes unfortunately there will be a cost. Sorry about that

Now, what Paul was asking for is slightly different than the news fair use case. He's talking about encouraging fans to repost the image on Facebook, in part to "be in Facebook's face," about the stupidity of banning that comic, and in part (I would assume) to test the consistency of Facebook's "review" process. Of course, Facebook has since apologized and admitted this was a mistake -- but you could see how it would be beneficial to have the image spread widely, not just in terms of general publicity, but also to make a larger point about Facebook's arbitrary moderation practices.

Admittedly, the person he was talking to is a "content sales & licensing" person -- so you could make the argument that her role is solely to focus on, you know, licensing and selling Conde Nast's content, and not to consider other things like the beneficial statement that could be made by having Facebook flooded with people reposting that comic, or even the fair use argument for reposting such an image. Unfortunately, this is actually a symptom of a larger problem. We've so "asset-ized" content (thanks to copyright) that people only view it through a single framework -- "what can we license" -- rather than looking at the reality of the situation and determining what's actually best for the company (possibility of making a viral statement) or the legal realities (like fair use). To its credit, I don't believe Conde Nast has reached out to anyone who actually posted the comic to get them to stop, but Paul's point is a good one: the company could have made an even bigger statement by encouraging people to share the comic -- but its natural reaction was merely to go straight to figuring out how much money it could extract from him.

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Filed Under: fair use, license fees, new yorker, nipplegate, reposting, sharing
Companies: conde nast, facebook

17 Comments

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Skeptical Cynic (profile), 17 Sep 2012 @ 8:05am

And how much is it worth to the New Yorker for the free publicity?
Look if they bought and paid for the comic I can see asking for attribution which I do not think is unreasonable.

I re-post article excerpts all the time but always direct people to the full article. The people that paid for the article creation should get some benefit.

But if they are smart they will understand that the any lost revenue is minor to the free publicity they get from those re-postings.

Had a run in with a BS site about re-posting article excerpts from their site and when I stopped they lost at least 1400+ click-thru's from my site a day. I know not a huge number but it could add up.
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Ninja (profile), 17 Sep 2012 @ 9:34am

I don't think people on the license business like fair use. You know, think about the starving artists.

Talk about living in denial...
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Anonymous Coward, 17 Sep 2012 @ 9:43am

'.....people only view it through a single framework -- "what can we license"'

should that read '"what can we charge for?"'
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Vidiot (profile), 17 Sep 2012 @ 9:51am

Old adage time
"Admittedly, the person he was talking to is a "content sales & licensing" person -- "

When all you've got is a hammer, everything looks like a nail.
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Anonymous Coward, 17 Sep 2012 @ 9:52am

This of course begs the question of why you didn't post Kate Middleton's photos too.
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Jeremy, 17 Sep 2012 @ 10:04am

My biggest motivation for creating a time machine...
is to go far enough into the future where the world no longer cares what parts of a woman's body are allowed to be shown in public. I weep for my present, a world where somehow ladies have been told to keep themselves under wraps. I long for the future, where toplessness at least has some equality to it.
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sehlat (profile), 17 Sep 2012 @ 10:10am

"I am only following orders."
That's really what the response of "content and licensing" amounts to. Any decision on how stupid such an attitude makes the company look, how many people it will influence toward helping people justify "taking without paying," since "they're all like that," are simply not HER department.

Each little department of a large company has its own concerns. The overall impact of a lot of little bad decisions is enormous and mostly negative, but actually keeping such stupidity under rein? That's somebody else's job, and the big bosses are too busy lobbying Washington for more special legal privilege to keep an eye on the day to day deterioration of the company.
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Anonymous Coward, 17 Sep 2012 @ 10:14am

Conde Nast
I'm not surprised. Conde Nast flips out every time an Old-Time Radio site uploads an episode of "The Shadow". They definitely have the old gatekeeper mentality; desperately trying to collect money for something most people aren't willing to pay for, and locking down culture in the process.
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DannyB (profile), 17 Sep 2012 @ 10:15am

How much is it worth?
How much is it worth?

Copyright owners want to make money like the military wants to win a war. The problem is one of focus.

Copyright owners are so focused on getting missiles to hit targets that are either expensive or kill large numbers of people that they won't fire a missile at an obvious target of opportunity like the general's jeep. It only has two people and as for equipment the loss of a jeep doesn't have much military effect.

So an opportunity comes along that is uncommon, like ignoring the short term licensing revenue in order to get significant exposure for one single comic and your name and newspaper. Ignore the opportunity because it doesn't appear valuable enough for "in the box" thinkers.
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DannyB (profile), 17 Sep 2012 @ 10:20am

Re:
Um, because he hasn't written a story on that topic.

Even if he did, that story is not an issue about dinosaur "thinking" about licensing, nor is it a story about facebook's inconsistent and arbitrary moderation.

It is a story about invasion of privacy, and it would be better to comment on it without further invading the privacy of the victims, taking the high road as it were, like other respectable reporters of news.
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DannyB (profile), 17 Sep 2012 @ 10:22am

Re: Re:
Correction: I see TD does have a story on that, but I had not read that far down the front page yet.

Nevertheless my last two paragraphs stand.
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AcidTone, 17 Sep 2012 @ 10:30am

Non-Story?
I'm not sure why this story was posted. Didn't it become a non-issue once they apologized? I realize there are probably many examples of copyright maximalism from this company but this does not look like one of them. If anything this action should be presented as an improvement of past behaviour.

To me it just looks like an example of employee disempowerment with respect to the "content sales & licensing" person, which is kind of the whole point of having a shitty job.
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harbingerofdoom (profile), 17 Sep 2012 @ 11:04am

Re:
dont be dumb.
a story about a lawsuit about pics of boobies does not require said boobies to understand what the hubub is about.

a story about a newspaper being told their cartoon is to controversial to be posted? then we kinda need to know whats in the cartoon.
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anon, 17 Sep 2012 @ 11:52am

Pay me Pay me now!!!!!
I don't care about copyright any more , they have gone so far over what anyone can describe as reasonable that it has become a self defeating instrument that does not do what it is supposed to do, does not do what it was created to do.

If the copyright laws are so outdated that they cannot see the difference between advertising or copyright theft I think when someone contacts you just accept that you will have to go to court or go one up on them and start a case in the small claims court for them trying to abuse the law and force you to make payments when you should not have to , is that not coercion to dupe people out of money.
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Anonymous Coward, 17 Sep 2012 @ 12:56pm

Re:
Begging the question, you're doing it wrong.
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Laroquod (profile), 17 Sep 2012 @ 2:10pm

Re: Non-Story?
Facebook apologised for censoring the cartoon in the first place, not for New Yorker's copyright maximalism. Nobody has apologised for that so what are you on about.
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Josh King (profile), 18 Sep 2012 @ 7:01am

Not a Legitimate Complaint
This is less a "demand" than someone not understanding how an organization works. The New Yorker has an active business in licensing its cartoons - for use on merchandise, corporate PowerPoint presentations, etc. If you ask that group for permission to use a cartoon for free, you will get the same answer every time: pay the licensing fee. There is nothing out-of-line or surprising about this. The New Yorker actually makes it easy and affordable for people to use its cartoons in this fashion, unlike many publishers.

What IS surprising, and what DOES speak volumes about our approach to property rights in this area, is that Levy asked for permission in the first place. If you know it's fair use, than use it and don't ask permission.
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