Why It's Tempting, But Troubling, To Use Copyright As A Stand In For Moral Rights
from the emotional-reactions dept
A few people have sent over an interesting lawsuit, filed on behalf of a married NY couple, Brian Edwards and Thomas Privitere, along with photographer Kristina Hill, against a (in my opinion, misnamed) advocacy group called "Public Advocate of the United States," (PAUS) which advocates against any effort to allow gay marriage. Edwards and Privitere had Hill photograph them for their engagement photos, and among the photos taken was this one:
“[The photo] represents my long term relationship with my best friend, my partner, and now husband – the love we share and obstacles we have overcome. It is a reminder of the happiness I felt the day he proposed to me and of the excitement I had throughout our engagement. It represents hope and it represents love. Or at least it did… Now I see it faded and brown with a big red, blood-emulating slash across our bodies. It cuts us in half just below our hearts. How do I feel? I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.”The image was used without permission by Edwards, Privitere or Hill, and all three are now suing PAUS over the use of the image. Hill is arguing copyright infringement, while Privitere and Edwards are arguing "appropriation of likeness or personality." I will admit that I have a vague acquaintance with one of the lawyers representing the three (in that I'm very familiar with his work, and met him once at a conference). I should also admit that I find PAUS's general position on this issue despicable, and find their use of an image that was created to celebrate love not just cynical, but insulting and obnoxious in the extreme. Emotionally, I want very much to look at this as a case where copyright makes sense and is being used wisely.
But I have concerns about its use here. Is this copyright infringement? Undoubtedly, under the law, it almost certainly is. The image is covered by copyright, and Hill registered it as well, giving her even greater ability to bring this kind of lawsuit. The photo was clearly used without authorization. Is there a fair use claim? In a pinch, I could see an argument for one (you could argue it's transformative, non-commercial use, political speech, etc.) but I'm not convinced it's a particularly strong fair use claim.
So, I am extraordinarily sympathetic to the plaintiffs here. And, at a gut level, I really, really want to support their position. But I'm worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have "moral rights" or "droit moral" on photographs, but we don't in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.
And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.
I am somewhat less troubled by the appropriation of likeness argument, and this is one (rare) area where it feels appropriately applied: to a situation in which individuals who do not support a particular viewpoint are thrust into a debate on it. One could argue that this actually gives them a platform to speak out about such bigotry and raise greater attention to the issue -- but it seems like a stretch to think that this is okay in these circumstances. You could also argue that no one (absolutely no one) would look at the image and think that Edwards or Privitere support the politicians running on an anti-gay marriage platform. You could also argue that once the photograph is out in the world, it means that the public can comment on the photo. All of those arguments do feel a bit weak, however.
On the whole, I completely understand why this lawsuit was filed and recognize how ridiculous and hurtful this particular use is for all three plaintiffs. But, cases that create emotional responses quite frequently lead to bad precedents that can later be used in other cases. And establishing the ability to use the economic right of copyright as a catch all moral right potentially stretches the law too far.
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Filed Under: brian edwards, copyright, kristina hill, moral right, photograph, thomas privitere
Companies: public advocacy of the united states
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question
I may just not be understanding the situation at hand though.
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Re: question
One of the reasons fair use exists is to limit the ability to use copyright as a form of censorship. A photograph in particular, especially one that depicts something controversial is in addition to any artistic depiction a capturing of a moment in history. That may be valuable to newspapers, commentators, and historians. Fair use partially exists to make sure all of those people are not undully hampered in doing their duty.
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Re: Re: question
Political speech is rightly highly protected, but they can't break the law while exercising that right. This clearly breaks the law.
Political campaigns have used songs against the artists wishes but those artists agreed to license their works for a flat use fee. They can't complain when it's used outside their interests and beliefs because legal license was granted.
I highly doubt any such 'use' license for this photograph exists and therefore the campaign has no legal standing to use the image.
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Transformation is one of the factors considered in determining fair use, not an absolute defense. And derivative works are absolutely not covered by fair use.
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Re: Re: Re: question
As for breaking the law while exercising free speech...The law, by definition, does not allow it. But society often lauds a certain amount of non-violent civil disobedience and non-violent law violations in the context of making powerful political statements. Gahndi and Martin Luther King Jr. both advocated a certain limited amount of non-violent law breaking and MLK participated in it and went to jail more than once.
Also, if you want to challenge a law's constitutionality in court you often must break it in order to create a live and current case. One of the Japanese curfew cases during WWII was created this way by a man of Japanese descent violating curfew with his lawyer aware and his secretary calling the police to ask that he be arrested.
To be clear, I am NOT comparing these people to MLK or other such civil rights heroes. I in fact openly state that I believe they morally did the wrong thing in using this picture, and I generally disagree with their stance.
But, it is not as simple as saying this is an open and shut case or saying that you can absolutely never break the law in exercising free speech.
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Re: question
"Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property."
http://thepublicindex.org/docs/amended_settlement/opinion.pdf
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Yes, THIS!
That's the important part. It's very easy to allow emotional reactions to dominate, and those emotional reactions are almost always, to some degree, wrong due to the coloration of emotion. The appropriate avenue for attack here is NOT copyright, though, like you, I'm less appalled by it or the likeness rights plea.
But again, the appropriate attack vector is to highlight the bigotry and pure idiocy of PAUS. I would simply request, in a public forum, "why did you feel it was okay to use this picture of two private people this way?"
I suspect, unfortunately, that the true answer lies somewhere in the realm of "because we don't consider them people". And FUCK PAUS for that. But in an age of relative enlightenment when it comes to gay rights, better to simply highlight the stupid and make them toxic than soil the morality of man by getting our stupid legal system involved in it....
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Re: Yes, THIS!
I was already pro-gay marriage. This pic just makes me more so. No need for lawsuits.
It would be funny if some of PAUS leadership were photographed in a negative manner, as turn about is fair play...
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I think there is an economic interest. If this image was not unlawfully appropriated, the producers of the ad would have had to stage such a picture. They easily could have meant actors or individuals who would have demanded compensation. If the producers had gone to the copyright owner, they'd probably have been denied use or made to pay a hefty sum.
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This, of course, is one massive stretch from the intention of the economic harm standard, which is to prevent loss of sale through the selling of the appropriated work by the infringing party, but at least it's a somewhat coherent argument....
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In the future you should offend more people whenever possible.
Copyright holders are such *insert prejudiced idea here*.
Maybe compare them to Muslims, or Mexicans, or illegal immigrants as those are also the socially "safe" targets to have these days oh and if your from the South you can always use the N word.
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It's orange!
And yes that makes as much sense too
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This lawsuit is the way they want the game played. This lawsuit hopefully will show the power of the DMCA. People all of the time have had their stuff removed from YouTube for transformative work. Have a video of nature with a bird singing in the background - It will get banned. Have a video of a 4 year old dancing with MTV playing in the background? It will get taken down also.
Steal an image of a couple and completely remove any romance...that's right - DMCA them. And then sue them.
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Economic Impact
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Way to shoot yourselves in the foot, Public Advocate of Gay-Bashing.
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Did PAUS have a model release of the two persons?
If you're going to use imagery of people for political purposes, then you really really should have a model release.
There is lots of CC and/or reasonably priced imagery online that has model releases. Sometimes the model releases restrict particular uses. For example, that the image of the model cannot be used in any way related to pornography or adult oriented businesses. Maybe some people who appear in stock photos want to think about use for political purposes or hate groups, or whatever else they might not want to be depicted in.
Couldn't PAUS have produced their own imagery or reasonably purchased imagery for their mailings?
Can't an anti-gay group get two men on their own staff to consent to kiss on camera so their photo can be seen by the general public? If not, then maybe they should re-think using other images of other people without their consent.
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Re: Did PAUS have a model release of the two persons?
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Once again proof that copyright is for the average Joe
This is an ideal example of how the little guy needs copyright. It puts the creator in control and lets the creator decide how his or her work is used. Copyright is very much a law that supports the work of little people everywhere because it gives little people a serious legal tool to keep the big corporations and big politicians from stomping all over them.
The rest of this posting is just a bunch of mental and ethical gymnastics because this blog has become a real creator hater that it can't even support copyright when the issues are so clear and uncontroversial. It's sad.
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Re: Once again proof that copyright is for the average Joe
"this blog has become a real creator hater" - No one forces you to come here. If you hate it so much, why do you constantly come here? It's sick really. That or you just enjoy being berated.
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Re: Once again proof that copyright is for the average Joe
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Re: Once again proof that copyright is for the average Joe
I don't directly agree with you much Bob, but I will give you this one.
Attempting to wrap a clear copyright issue into some sort of moral thing is just crap. It's their picture, they have the rights, they didn't permit it. END. No moral play, no issue that they are gay, not gay, bisexual, tri-sexual, or neuters. It doesn't matter - it doesn't enter into the issue.
Put another way, they would likely be just as upset and just as likely to file suit if it was the Rainbow Coalition using it, or Out Magazine. The type of usage isn't as important as the idea that it's usage without permission, END.
The moral stuff is some method to try to bury the very basic issues under a gay vs homophobes rug. I think it's more intellectual dishonesty, shows me only that Mike is getting more and more desperate to try to find cases that support his views, and to discredit or downplay those that do not.
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Re: Re: Once again proof that copyright is for the average Joe
If Mike had tried any more to avoid leaving out troll-bait, he'd have fallen over. In fact, if Mike came out and spoke FOR copyright and against Fair Use, especially for a 'big company' you trolls would still find something to bash him over. Grow up.
At least here we have a clear case of Big Shills Big Suck-up-to Big Hate. I'll take Mike's side with the small, decent people here.
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They could easily fix that banner to read "PAUS endorse our marriage?" and distribute that?
I don't know, I like to stick to my principles and try to find creative solutions to problems. Just the publicity alone is a negative (positive?) for PAUS I imagine, I mean who are they even? First time I've heard of them and it seems like their target market is going to be the kind of people who see this photo and see red anyway...
What I mean is reasonable people will see it for what it is anyway, unreasonable people are not going to be influenced beyond their prejudice already.
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Simple answer
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Another angle
The two men in the photo would have a stronger legal standing if they had not given ownership of their photo to the photographer.
With professional photography we very often think that we are having "our" picture taken and that it then is "ours." But it is the photographer's work of art, it is not at all ours.
On this case I think the photographer has clear legal standing against PAUS using their artwork. I don't think the men really have any strong legal standing in this at all.
However, if they had insisted in owning (or buying) the rights to their photo, they would have an even stronger standing than the photographer.
This is why you should pay extra to get the copyrights of photos you have taken of you.
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Re: Another angle
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Unless agreed between the photographer and subjects, the copyright of a photograph belong to the photographer. The could agree to such use without consulting the subjects.
Claiming fair use for this use, or news use,would allow the news organizations to make use of all CC licensed photographs while totally ignoring any license terms.
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Photos of private citizens vs. public figures
Using photos of public figures is one thing where fair use could easily be argued (copyright of the photographer not withstanding), but using photos of private citizens who have some expectation of privacy is, in some places, clearly illegal without their explicit signed release. I hope that this couple prevails in court and takes PAUS to the cleaners!
-Spiff
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Likeness / First Amendment
Misappropriation laws were not created to prevent people from being thrust into political debates. They were created to prevent false product endorsements. It's not a moral right, but an economic right similar to trademark. Here, there's no commercial product, and if there was, the couple clearly doesn't endorse it.
In addition, think of this in First Amendment terms. PAUS is not only attacking politicians -- it's also attacking Edwards and Privitere themselves, and saying that they're doing is wrong. Telling PAUS that it can't use a photo of Edwards and Privitere to criticize Edwards and Privitere is like telling Romney he can't use Obama's photo to attack Obama.
Of course, Edwards and Privitere have a greater privacy interest than Obama. But it's not against the law to talk about private people in public. Were it otherwise, kids would be sued for bad-mouthing each other on Facebook. And while this photo may have some private meaning for the couple, they can't very well claim a privacy interest in it if they post it on a public blog.
To be clear, I find PAUS's actions repugnant, but copyright issues aside, if Fred Phelps has the right to picket the funeral of a soldier, then PAUS clearly has a right to say, "We disapprove of Brian Edwards's and Thomas Privitere's act of love."
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Fair Use / Satire
Here, Kristina Hill would argue that her photograph is not being copied to critique the artistic merits of her photo, but to go after something else entirely (politicians). On the other hand, PAUS could quite plausibly say they're also criticizing gay marriage, gay people, and Hill's complicity in the entire enterprise.
To me, that just highlights how ridiculous the satire / parody distinction is in fair use. Fair use is really about one thing -- does this use somehow serve as an economic substitute for the original? In this case, it clearly doesn't. While PAUS's ads are repugnant, this isn't why copyright was created.
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One thing this does do...
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Re:
That would vary from state to state, would it not? I don't think there's an applicable federal law.
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Moral Rights Claim?
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Registration of this picture
If she registered after the fact isn't it too late to bring on a federal copyright suit? Doesn't the registration need to be done before the infringement?
Just curious I am however on the side of those guys and pro gay marriage, just wondering about the semantics of the law here.
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