Now this is an interesting development for the wire service that caters to terrorists first [Ed.:—I should've added ", the customer second." No bad joke goes unturned over here!]:
When a prostitute hired by former New York Gov. Eliot Spitzer was identified Wednesday, news outlets eagerly published photos grabbed from her MySpace profile.
Can they get away with that?
Three attorneys who specialize in copyright law say media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.
"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument."
Wolff says the news organizations probably decided the risk of a lawsuit was low. They also probably considered competitive pressure as other sources published the same photos. "It's a fast business decision," Wolff says.
The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker.
In this case, Hecker says, the image was not transformed and it diminishes the market for the image rights.
Of course, in my experience, intellectual property experts are always going on about "dangerous waters"—though, also from my experience, they do seem to always have a point. After all, copyright law isn't exactly something that's set in stone.
Be sure to hop on over for the rest. And if you haven't read it yet, be sure to check out Daryl's excellent analysis of my recent situation.Update: Bwahaha—Jules, you certainly do have a way with words!
Oh, I almost forgot—CNN has gotten itself in a bit of a "copyright pickle," as well. The natives, in this case being our photojournalist friends, are (understandably) riled up about it.
Update: "Oh snap." On second thought, maybe I'd better not... ;)
Update: Mr. Malor, I believe what you're trying to say here is schadenfreude. Or, as Nelson Muntz so eloquently puts it, "HA ha!"
Not that I would laugh at any wire service that happened to face a lawsuit over this. It just wouldn't be prudent at this juncture!
See-also: Instapundit (!!!!!!), Patterico (!!!!!!), Mark Steyn (!!!!!!!!!), The Pirate's Cove, TigerHawk, Michelle Malkin, Newsbusters, Chip Bennet .net (As opposed to that shifty Chip Bennet .org guy :) ).
Tags: copyright AP #DailyFodder
Comments:
#2 Brian C. Ledbetter 14-Mar-2008
Haha, yeah, right.
(I hear she recently "stumbled" upon 70% of a million dollars... which leaves her 70% of a million dollars closer to a "legal department" than this ol' site has.. ;) )
Off-topic announcement:—My fortune says "watch this site for big updates." Wonder why?
Regards,
Brian
(I hear she recently "stumbled" upon 70% of a million dollars... which leaves her 70% of a million dollars closer to a "legal department" than this ol' site has.. ;) )
Off-topic announcement:—My fortune says "watch this site for big updates." Wonder why?
Regards,
Brian
#3 mikep 14-Mar-2008
for all our enlightenment and liberalization and blah blah blah...
it all comes down to this:
Who do I have to f*** to get my million?
Wow. How 21st century.
it all comes down to this:
Who do I have to f*** to get my million?
Wow. How 21st century.
#4 Brian C. Ledbetter 14-Mar-2008
Mike,
You say that as if it's [i]ever[/i] been any different throughout history? ;)
Regards,
Brian
You say that as if it's [i]ever[/i] been any different throughout history? ;)
Regards,
Brian
#5 doubleplusundead 14-Mar-2008
Thanks for the linky, Brian!
#6 Brian C. Ledbetter 15-Mar-2008
You stinky, I linky!
Oh wait—[i]You[/i] don't stinky. That means that it [i]must[/i] be all those zombies you have over there!
:)
(Couldn't resist the bad joke. Just got done watching Resident Evil: Extinction on Ye Olde tv.)
Regards,
Brian
Oh wait—[i]You[/i] don't stinky. That means that it [i]must[/i] be all those zombies you have over there!
:)
(Couldn't resist the bad joke. Just got done watching Resident Evil: Extinction on Ye Olde tv.)
Regards,
Brian
#7 Pirate's Cove 15-Mar-2008
Many of you remember what happened to snapped shot: the AP sent him a cease and desist order, and demanded that he removed all AP photos from his site. This began a long discussion, with Bob Owens of Confederate Yankee contacting the AP, and coming to ...
#8 Pirate's Cove 15-Mar-2008
Many of you remember what happened to snapped shot: the AP sent him a cease and desist order, and demanded that he removed all AP photos from his site. This began a long discussion, with Bob Owens of Confederate Yankee contacting the AP, and coming to ...
#9 McCain Blogs 15-Mar-2008
Many of you remember what happened to snapped shot: the AP sent him a cease and desist order, and demanded that he removed all AP photos from his site. This began a long discussion, with Bob Owens of Confederate Yankee contacting the AP, and coming t...
#10 Kevin 15-Mar-2008
I'm sponsoring a bill in Congress that would make it a law that every photo used by Snapped Shot is fair use.
Don't get your hopes up though, since I'm not a Congressman :(.
Don't get your hopes up though, since I'm not a Congressman :(.
#11 William Teach 15-Mar-2008
Ya think this is a bit of serendipidy? ;)
#12 doubleplusundead 15-Mar-2008
Heh, I sent this to Brian's email, but I thought I'd post it here for anyone too, her legal team's looking to go after the media for using those pics. http://doubleplusundead.mee.nu/looks_like_i_got_my_answer
#13 Kevin R.C. 'Hognose' O'Brien 15-Mar-2008
Kristen: selling the only thing she has of value in what was a private transaction, until she inadvertently sold it to a public figure.
AP: Participated in the murder of Iraqi election workers (with foreknowledge). Participated in (actually led, listen to the APTV crew encourage the mob on the B-roll...) the mutilation of security contractors (with foreknowledge). Participated in the murder of an Italian logistics worker and/or abuse of his remains (that last is our friend, Pulitzer Prize-winning terrorist Bilal Hussein).
AP does to its readers and member newspapers what Spitzer wanted to do with Kristen, but he paid her and she ultimately was able to require him to wear protection.
AP: Participated in the murder of Iraqi election workers (with foreknowledge). Participated in (actually led, listen to the APTV crew encourage the mob on the B-roll...) the mutilation of security contractors (with foreknowledge). Participated in the murder of an Italian logistics worker and/or abuse of his remains (that last is our friend, Pulitzer Prize-winning terrorist Bilal Hussein).
AP does to its readers and member newspapers what Spitzer wanted to do with Kristen, but he paid her and she ultimately was able to require him to wear protection.
#14 Nigel 15-Mar-2008
Unbelievable...
I'd forward your post to Priti Doshi, but I think you probably don't want to open up that can of worms again.
But perhaps for fun, I'll download 10 AP pics this week and post them in honor of Brian and Kristen...
I'd forward your post to Priti Doshi, but I think you probably don't want to open up that can of worms again.
But perhaps for fun, I'll download 10 AP pics this week and post them in honor of Brian and Kristen...
#15 otoc 15-Mar-2008
lol, in the spirit of open debate and with my despair regarding cross linking to sites for clicks when the original story tells it more efficiently:
PDN broke this story on Thursday:
Read the PDN Story directly by clicking here
And Yahoo News reported an AP story about Ashley Alexandra Dupre hiring legal counsel today:
Read the AP story by clicking here
Without going into a micro reading of Fair Use, here's the significance of the story for anyone who has received a cease and desist letter for photography.
There has been no precedent setting case regarding the use of an entire photograph as being fair use.
Until Thursday, there has been no written position from the media that they consider an entire photograph to be considered fair use.
According to IP experts interviewed by PDN, regarding the use of entire photographs, ' "media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.
"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument." '
Considering no argument for use of an entire photograph has ever been made in court makes this is very interesting because AP recently stated the use of a whole photo was considered "a substantial taking under Fair Use" knowing the law is going to review the "amount and substantiality of the portion used in relation to the copyrighted work as a whole" under the fair use factors.
According to the PDN article:
' The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker.
In this case, Hecker says, the image was not transformed and it diminishes the market for the image rights. '
Methods of transformation include converting to a thumbnail or cropping out most of the original. Remember, fair use has been established in court only to allow a portion of the original.
According to the AP news story:
' The AP distributed three of those images, in one of which she is wearing a bikini, and issued a disclaimer authorizing the use of the photos only with reports or commentary on the Spitzer scandal. The photos were also restricted from commercial sale.
The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy," said Associated Press National Photo Editor V.W. Vaughan. "We distributed the photos that were relevant to the story. Those photos did not show nudity, nor were they explicit." '
Since AP used the entire photo and are claiming that it is allowed under fair use because of the news factor, a published standing that sets forth a standard that AP has never set or allowed themselves has now been made.
Does this make a precedent setting case? No. It does allow interpretation by sites such as snappedshot.com to use full images. There's always the possibility that AP could choose to argue against such use in a court, but their side of the argument would be weakened by this published statement.
It looks like Dupre's counsel has laid out the ground work for a case. This could be the precedent case that we have all been waiting for. At least the "we" who have been advising Brian to be conservative.
And to think that this Fair Use case could be established not by bloggers fighting over freedom of speech with the media, but by a hooker makes me appreciate how interpretation of laws can come from the most interesting places.
Let's hope that the case, if it does go to court, covers the important factor of the use of an entire image as being fair and not how private photos can't be used by the press under fair use when they are newsworthy.
Brian, you should be routing for AP on this one, because if they win, you win.
PDN broke this story on Thursday:
Read the PDN Story directly by clicking here
And Yahoo News reported an AP story about Ashley Alexandra Dupre hiring legal counsel today:
Read the AP story by clicking here
Without going into a micro reading of Fair Use, here's the significance of the story for anyone who has received a cease and desist letter for photography.
There has been no precedent setting case regarding the use of an entire photograph as being fair use.
Until Thursday, there has been no written position from the media that they consider an entire photograph to be considered fair use.
According to IP experts interviewed by PDN, regarding the use of entire photographs, ' "media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.
"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument." '
Considering no argument for use of an entire photograph has ever been made in court makes this is very interesting because AP recently stated the use of a whole photo was considered "a substantial taking under Fair Use" knowing the law is going to review the "amount and substantiality of the portion used in relation to the copyrighted work as a whole" under the fair use factors.
According to the PDN article:
' The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker.
In this case, Hecker says, the image was not transformed and it diminishes the market for the image rights. '
Methods of transformation include converting to a thumbnail or cropping out most of the original. Remember, fair use has been established in court only to allow a portion of the original.
According to the AP news story:
' The AP distributed three of those images, in one of which she is wearing a bikini, and issued a disclaimer authorizing the use of the photos only with reports or commentary on the Spitzer scandal. The photos were also restricted from commercial sale.
The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy," said Associated Press National Photo Editor V.W. Vaughan. "We distributed the photos that were relevant to the story. Those photos did not show nudity, nor were they explicit." '
Since AP used the entire photo and are claiming that it is allowed under fair use because of the news factor, a published standing that sets forth a standard that AP has never set or allowed themselves has now been made.
Does this make a precedent setting case? No. It does allow interpretation by sites such as snappedshot.com to use full images. There's always the possibility that AP could choose to argue against such use in a court, but their side of the argument would be weakened by this published statement.
It looks like Dupre's counsel has laid out the ground work for a case. This could be the precedent case that we have all been waiting for. At least the "we" who have been advising Brian to be conservative.
And to think that this Fair Use case could be established not by bloggers fighting over freedom of speech with the media, but by a hooker makes me appreciate how interpretation of laws can come from the most interesting places.
Let's hope that the case, if it does go to court, covers the important factor of the use of an entire image as being fair and not how private photos can't be used by the press under fair use when they are newsworthy.
Brian, you should be routing for AP on this one, because if they win, you win.
#16 doubleplusundead 15-Mar-2008
That may well be true otoc, but it is fun to laugh at the AP's flagrant hypocrisy, and we may as well have some fun with this.
#17 captainfish 16-Mar-2008
AP: "I laugh in your general direction"
Brian, I really hope you were able to make a full backup of your site before you removed your images. That way, once the glorious and foundational AP proves their point that an entire image is fair use, thus avoiding to pay a hooker millions of dollars (ironic?), then you can bring your old site back up full of nice pretty pics and all.
Brian, I really hope you were able to make a full backup of your site before you removed your images. That way, once the glorious and foundational AP proves their point that an entire image is fair use, thus avoiding to pay a hooker millions of dollars (ironic?), then you can bring your old site back up full of nice pretty pics and all.
#18 Huntress 16-Mar-2008
Only in America can a not so hot looking woman, who at times photographs well , sell her body (illegally) for more money than any man should pay for sex, and continue to sell her body(albeit legally) to Hollywood to make even MORE money on film, book & music rights.
Then again, a stripper come screenwriter just won an Oscar!
Is this what they mean when they say "sex sells" *SOL* ( snort out loud)
Look for Ashley to launch line of fashion lingerie which bares her name and to receive an invite to the Vanity Fair party next year!!
As for fair use: when one considers that Ashley's photo had been shown on every major network before the AP used it....the whole fair use argument is on shakey ground.
She can't claim the AP owes her money, when she didn't get paid by other media outlets. If she sold her images to the other media, then AP owes her money and trust me the OTHER media outlets would be all over AP for IP infringement.
But in truth, knowing the media would access her Facebook and myspace page, Ashley removed the names of all friends who posted on her Facebook and were listed as "friends' so the media couldn't get to them, BUT she added a ton of photos!
She wanted those photos out there! Suddenly Ashley has become very savvy at marketing. How very "Madonna' of her!
Hard to for her to argue any IP infringement with behavior like that.
However had a photo of Ashley's been shot by an AP photographer, we know they'd be screaming Intellectual Property theft if SHE posted them on HER Facebook or Myspace and they were then used by by bloggers, and smaller MSM outlets
When it's AP/CNN/Reuters or any big media using photos they don't own, they call it "fair use" but when it's bloggers using photos shot by big media they call it "copyright infringement".
Then again, a stripper come screenwriter just won an Oscar!
Is this what they mean when they say "sex sells" *SOL* ( snort out loud)
Look for Ashley to launch line of fashion lingerie which bares her name and to receive an invite to the Vanity Fair party next year!!
As for fair use: when one considers that Ashley's photo had been shown on every major network before the AP used it....the whole fair use argument is on shakey ground.
She can't claim the AP owes her money, when she didn't get paid by other media outlets. If she sold her images to the other media, then AP owes her money and trust me the OTHER media outlets would be all over AP for IP infringement.
But in truth, knowing the media would access her Facebook and myspace page, Ashley removed the names of all friends who posted on her Facebook and were listed as "friends' so the media couldn't get to them, BUT she added a ton of photos!
She wanted those photos out there! Suddenly Ashley has become very savvy at marketing. How very "Madonna' of her!
Hard to for her to argue any IP infringement with behavior like that.
However had a photo of Ashley's been shot by an AP photographer, we know they'd be screaming Intellectual Property theft if SHE posted them on HER Facebook or Myspace and they were then used by by bloggers, and smaller MSM outlets
When it's AP/CNN/Reuters or any big media using photos they don't own, they call it "fair use" but when it's bloggers using photos shot by big media they call it "copyright infringement".
#19 Whisper of truth 16-Mar-2008
A Spitzer prostitute case would be a tad complex because the copyright to the photos is held by each photographer, not her.
#20 otoc 16-Mar-2008
NEWS FLASH
APPALOOSA PALOOKA NEWS (APN)
AUGUST 23, 2009
The celebrity copyright case of Ashley Dupree vs VBM (Various Big Media) took a humorous turn in court yesterday with AP (that other AP) legal honcho Y.M. Ihear visibly shaken when the Dupree legal team, sponsored by Hustler Magazine, brought up a widely publicized exchange in 2008 between AP and a website specializing in the critique of journalism, Snappedshot.com.
Ihear was asked about a cease and desist letter specifying the use of AP's photos were not news related when Snappedshot.com used AP photos to show how news was shown and therefore not "Fair Use". After a brief moment of silence and a wipe of his brow, Ihear stated,"That was all a regrettable misunderstanding over the word 'no'."
"When AP said no, we didn't mean no, we meant don't use our stuff in explicit ways. We take care in not having our material used in suggestive exploitation of the news. As you can plainly see in the Dupree situation, our care to not show any orifice that might be found by our readers to offend was our greatest challenge. The website Snappedshot.com used our materials showing orifices."
The owner of Snappedshot.com, Brian C. Ledbetter was brought in to testify on Dupree's behalf. Being on a full expense paid trip sponsored by Hustler magazine, Ledbetter had to be wheeled into the courtroom on life support. Through an interpreter Ledbetter stated the "orafice" to which AP complained was nothing more than the open mouth of a character known worldwide as "Rage Boy". Ledbetter went on to say "AP said no to the use of any photo."
Ihear shocked the court when he shouted out, "But when we said no, we didn't mean no! We need to establish what "no" is. Regardless, I have found an internal document that gave Ledbetter permission to use our materials, and it must have been lost in the mail."
Ledbetter shook his head and said "no". "No such letter was ever seen by me" and was wheeled out of the courtroom by Hustler's January, February, and March cover models, waving to the press with a single finger salute and a big smile.
The next witness in the case, former President Bill Clinton, also sponsored by Hustler and smiling widely, went on for two hours on how "no" has the same connotation as "is" and as he experienced during impeachment proceedings didn't mean guano, saying "in the end, 'no' means 'no' and that's all there 'is' ". He then bounded out of the court with April, May, and June, waving to the cameras saying "glad you lost Hillary, my life is much more fun these days not having to watch you cry anymore!".
The next day, Snappedshot.com, resurrected a full archive of the site upon hearing about the mysterious letter with published thanks to both AP and Hustler. On a side note, "Rage Boy" has been selected to be featured in a special Hustler anniversary edition with Dupree entitled "Screw the virgins in death, give me western girls in life: How jihad wasn't really me."
The proceedings will continue for the next month with other dignitaries and clients expected to testify on the case as expert witnesses regarding the law.
Meanwhile in the news, Dupree's single "What we want" has hit platinum and her mySpace friends, Whitney, Mary, Madonna, and Amy were said to have organized a party in her honor. The yet undisclosed New York hot spot has reportedly made a "no" photos policy for fair use, and AP is in negotiations for permission to cover the private event.
Copyright 2008, the poster known as otoc. Reprinted under "Fair Use" exemptions to US Copyright Laws. All other rights reserved without permission from the poster, unless Hustler wants to sponsor him too. Then we can talk.
APPALOOSA PALOOKA NEWS (APN)
AUGUST 23, 2009
The celebrity copyright case of Ashley Dupree vs VBM (Various Big Media) took a humorous turn in court yesterday with AP (that other AP) legal honcho Y.M. Ihear visibly shaken when the Dupree legal team, sponsored by Hustler Magazine, brought up a widely publicized exchange in 2008 between AP and a website specializing in the critique of journalism, Snappedshot.com.
Ihear was asked about a cease and desist letter specifying the use of AP's photos were not news related when Snappedshot.com used AP photos to show how news was shown and therefore not "Fair Use". After a brief moment of silence and a wipe of his brow, Ihear stated,"That was all a regrettable misunderstanding over the word 'no'."
"When AP said no, we didn't mean no, we meant don't use our stuff in explicit ways. We take care in not having our material used in suggestive exploitation of the news. As you can plainly see in the Dupree situation, our care to not show any orifice that might be found by our readers to offend was our greatest challenge. The website Snappedshot.com used our materials showing orifices."
The owner of Snappedshot.com, Brian C. Ledbetter was brought in to testify on Dupree's behalf. Being on a full expense paid trip sponsored by Hustler magazine, Ledbetter had to be wheeled into the courtroom on life support. Through an interpreter Ledbetter stated the "orafice" to which AP complained was nothing more than the open mouth of a character known worldwide as "Rage Boy". Ledbetter went on to say "AP said no to the use of any photo."
Ihear shocked the court when he shouted out, "But when we said no, we didn't mean no! We need to establish what "no" is. Regardless, I have found an internal document that gave Ledbetter permission to use our materials, and it must have been lost in the mail."
Ledbetter shook his head and said "no". "No such letter was ever seen by me" and was wheeled out of the courtroom by Hustler's January, February, and March cover models, waving to the press with a single finger salute and a big smile.
The next witness in the case, former President Bill Clinton, also sponsored by Hustler and smiling widely, went on for two hours on how "no" has the same connotation as "is" and as he experienced during impeachment proceedings didn't mean guano, saying "in the end, 'no' means 'no' and that's all there 'is' ". He then bounded out of the court with April, May, and June, waving to the cameras saying "glad you lost Hillary, my life is much more fun these days not having to watch you cry anymore!".
The next day, Snappedshot.com, resurrected a full archive of the site upon hearing about the mysterious letter with published thanks to both AP and Hustler. On a side note, "Rage Boy" has been selected to be featured in a special Hustler anniversary edition with Dupree entitled "Screw the virgins in death, give me western girls in life: How jihad wasn't really me."
The proceedings will continue for the next month with other dignitaries and clients expected to testify on the case as expert witnesses regarding the law.
Meanwhile in the news, Dupree's single "What we want" has hit platinum and her mySpace friends, Whitney, Mary, Madonna, and Amy were said to have organized a party in her honor. The yet undisclosed New York hot spot has reportedly made a "no" photos policy for fair use, and AP is in negotiations for permission to cover the private event.
Copyright 2008, the poster known as otoc. Reprinted under "Fair Use" exemptions to US Copyright Laws. All other rights reserved without permission from the poster, unless Hustler wants to sponsor him too. Then we can talk.
#21 jimzinsocal 16-Mar-2008
The earlier assertion around cross linking.
My perception is it isn't about clicks
or anything so self serving.
I take any cross linking as a means of "spreading the story" that will generate awareness and comments tied to the site's "regular" readers.
Also there is an implied measure of support.
When various bloggers and sites link back to Brian?
Brian wins....via exposure.
Perhaps its the way alternative media outlets can perform much the same function we find in every AP Story thats passed along to the msm outlets.
IMO
My perception is it isn't about clicks
or anything so self serving.
I take any cross linking as a means of "spreading the story" that will generate awareness and comments tied to the site's "regular" readers.
Also there is an implied measure of support.
When various bloggers and sites link back to Brian?
Brian wins....via exposure.
Perhaps its the way alternative media outlets can perform much the same function we find in every AP Story thats passed along to the msm outlets.
IMO
#22 jimzinsocal 16-Mar-2008
That is sooo excellent!!
Ill be reposting soon after the financial hurdles have been resolved!!
Ill be reposting soon after the financial hurdles have been resolved!!
#23 captainfish 16-Mar-2008
OTOC you are hilarious.
What is astounding is that it will probably end up that way.
(with Brian being wheeled out on gurney due to being overly intoxicated I mean.)
What is astounding is that it will probably end up that way.
(with Brian being wheeled out on gurney due to being overly intoxicated I mean.)
#24 otoc 16-Mar-2008
Brian must be out with the girls, so this can't be placed in the NEWSFLASH right now.
Let's see what that Hustler spread is all about...
parody copyright 2008, otoc. All rights reserved. Published with permission to Brian. AP, you need to pay big time if you want it.
Let's see what that Hustler spread is all about...
parody copyright 2008, otoc. All rights reserved. Published with permission to Brian. AP, you need to pay big time if you want it.
That is: The size of SnappedShot's and Kristen's legal department (aka zero).