Flickr Censors Political Image Critical of President Obama

Flickr Censors Political Image Critical of President Obama“Flickr had removed the Joker image due to copyright-infringement concerns, Alkhateeb says the company told him in an e-mail. A Flickr spokeswoman declined to comment due to a company policy that bars discussing inquiries about individual users.”

There’s an interesting piece over at the Los Angeles Times today about the unmasking of the author of the iconic Obama/Joker photo (left). The photo recently began turning up in Los Angeles with the word “socialism” printed underneath it in similar style to the famous Shepard Fairey Obama HOPE poster and since then has been the subject of considerable debate and online interest.

It turns about that, according to the Times, a 20-year-old college student from Chicago, Firas Alkhateeb, is the artist behind the work. Apparently Alkhateeb made the image using Adobe’s Photoshop software.

After creating the image Alkhateeb posted it to his Flickr account and ended up getting over 20,000 views on it. 20,000 views that is until Flickr pulled the image down censoring him, along with everyone who commented on the image, citing “copyright-infringement concerns,” according to the Times.

Personally I think it’s too bad that Flickr decided to censor this iconic image. Whatever you may or may not think about this image and it’s appropriateness, the image would absolutely and unequivocally be considered parody and parody has always been one of the most effective defenses against any copyright complaint. Parody is why Weird Al gets away with creating a song called “Eat It,” directly to the tune of Michael Jackson’s “Beat It.”

What’s more, in the interest of free speech, political parody *especially* is perhaps given the widest berth of all. This is why Ralph Nader was able to directly rip MasterCard’s “Priceless” campaign and why the courts subsequently ruled in his favor after MasterCard sued him over it. Earlier today, a friend and Flickr contact of mine from DMU, A Boy and His Prime, who is a law student, put it more directly. “If you produce something that is transformative, and not derivative, then it’s fair use (Folsom v Marsh). In Campbell v Acuff-Rose, 510 U.S. 569, Souter seemed to suggest that the main idea is substitutability, and that makes a lot of sense when you consider what copyright protects (i.e. your interest in your own work). The Jokerbama does not replace the original photo in any sense.” I’m not a lawyer myself of course and would be interested if anyone else out there who is would like to add comment as well.

Personally, I think it’s unfortunate that Flickr would embark upon yet another act of censorship when an image was so clearly parody and fair use. What bothers me even more is that this is still another example of Flickr censoring users who are critical of President Obama and his policies. In June Flickr deleted the entire account and photostream of Flickr user Shepherd Johnson after he posted comments critical of the President on the Official White House Photostream. Now I’m actually a Democrat who voted for President Obama and am super happy to see the President using Flickr. But while Flickr’s staff is obviously proud of the fact that they have President Obama’s official photostream on Flickr, I don’t think that this fact ought to be the impetuous for them to censor and delete users who are critical of the President.

I’m also troubled by this censorship in light of the clear pro-Obama bias that Flickr’s staff has shown. If you do a search for the word “Obama” on the flickr blog you get 74 different results, many of them very positive. By contrast a search for “Bush” on the Flickr blog only pulls up 5 results (even though Flickr has existed much longer under President Bush’s presidency than President Obama’s).

Now I have no trouble or problem with anyone on Flickr staff or anyone at Yahoo personally supporting whatever candidate they want. Yahoo CEO Carol Bartz personally contributed to both Bush and McCain and currently serves as a finance co-chair for Republican Gubernatorial candidate Meg Whitman’s finance committe. But I think when personal politics begin to take on a bigger role in corporate communications and especially when it begins resulting in politically motivated censorship that things have gone too far in the wrong direction. I hope that Yahoo does in fact consider it a mistake in hindsight to have deleted this clear fair use image critical of the President and that they take steps to ensure that this sort of politically motivated censorship by Flickr Staff is curtailed in the future.

I’ve contacted Alkhateeb about his image deletion and will hopefully be able to report back with more directly from him when I hear back from him.

I’ve also posted the exact same image that Flickr deleted to my own photostream. Let’s see if Flickr decides to censor me as well.

Update: bitchville over at Flickr pointed out that using the Weird Al example is actually a poor one since Weird Al actually had permission from Michael Jackson to record that song. I should have researched that more. A better example of the courts rulling in favor of parody would be that of the band 2 Live Crew and their version of “Pretty Woman.”

From publaw.com:

” The United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) stated in no uncertain terms that a parody as a form of criticism or comment could be fair use of a copyrighted work. Oh, Pretty Woman is a rock ballad written by Roy Orbison and William Dees. Luther Campbell and his musical rapper group, 2 Live Crew, wrote a rap song entitled Pretty Woman that had substantial similarities to the Orbison/Dees song. 2 Live Crew attempted to obtain permission for their parody from Acuff-Rose, the publisher of Oh, Pretty Woman, but were refused permission. 2 Live Crew then proceeded without permission to release their rap song and accorded Orbison/Dees with authorial credit and listed Acuff-Rose as the publisher. Acuff-Rose then brought a lawsuit, which at the trial court level ruled in favor of 2 Live Crew based upon its fair use parody defense. This decision was reversed on appeal when the Sixth Circuit ruled against the fair use parody defense because of the commercial nature of the 2 Live Crew rendition and the presumption of market harm that the rap rendition might cause for the Orbison/Dees song. The Sixth Circuit’s decision was then appealed to the Supreme Court.

The Supreme Court accepted 2 Live Crew’s song as a parody because the rap song mimicked the original to achieve its message and because it “reasonably could be perceived as commenting on the original [Oh, Pretty Woman] or criticizing it, to some degree.””

Update 2: More from The Inquisitor, Read Write Web, and I Think.

Update 3: News Busters points out that there are plenty of anti-Bush Time Magazine covers that are on Flickr that apparently are not “copyright” violations.

Update 4: On Slashdot here.

Update 5: RWW on the NY Times here. Valleywag/Gawker on the issue here and Techmeme here.

Update 6: Flickr is now saying that they received a DMCA takedown notice over this issue. From Heather Champ at Flickr:

“Flickr must be compliant with all local laws within the 21 countries where we are. The Yahoo! Terms of Service in all of those regions outlines what the process is for dealing with infringement of copyright. In this intance, the Yahoo! Copyright Team here in the US received a complete Notice of Infringement as outlined by the DMCA (Digitial Millenium Copyright Act). Under the DMCA, an individual may choose to file a counterclaim.”

It is interesting that prior to this response by Heather that Flickr/Yahoo was stonewalling people on the issue saying that it is their policy not to discuss individual accounts. And yet now they are discussing an individual account after a barrage of negative press.

Heather also points out that “there appears to be a whole lot of makey uppey going in the news and blogosphere about this event.” [my emphasis]. It’s nice to see Flickr treat adults, blogs and news organizations reporting on a serious issue like they are children.

As Flickr has received a DMCA takedown notice, my further questions would be

1. Who filed the takedown notice?

2. Does Flickr take any steps to ensure that takedown notices are valid or do they just blindly remove them 100% of the time (note that WordPress recently defended the Fake Chuck Westall parody blog after Canon Inc., sent them a takedown request where they felt that there was no valid copyright concern).

3. Did they retain a back up copy of both the image and all of the comments that were posted to the image to ensure that they can restore them if the DMCA notice is refuted? If not, why not?

A partial list of additional coverage on this story here:

NY Times

gawker.com/5341295/flickr-deletes-obama-caricature#”>Gawker
www.prisonplanet.com/flickr-censors-obama-joker-image.html”>PrisonPlanet
FastCompany
Techmeme
Slashdot
LA Times
Newsbusters
Read Write Web
I Think
Inquisitor
Instapundit
Flickr Help Forum (I’ve been indefinitely banned from the Flickr Help Forum)
Tech Dirt
Short Form Blog
Samuel’s Blog
Disinter
Right Voices
TechTerminal
ExUrbanLeague
iPenny

In an unrelated case it seems that Flickr has received yet another public criticism in their help forum today over yet another deleted account. Apparently this account had women with bikinis on it who were tagged with the word “babe.” So in addition to shots of men without their shirts on taken by professional photographers, it seems that photos of women in bikinis now also might be forbidden on the site. No word yet if they received a DMCA takedown notice over this one yet or not of if it’s just another one of their attempts to use their vague “don’t be that guy” policy against a user.

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101 comments on “Flickr Censors Political Image Critical of President Obama
  1. Mike says:

    Seems like a decent argument for parody, but I don’t know that I’d have the same view if the original were just a headshot and not a TIME cover advancing O for president and mentioning “Heroes” and “Nuclear Rogues.” Parody has to comment on the original work, to mock it. Obama as Joker mocks the original’s pleasant image of Obama being advanced for president in a dangerous world in need of heroes.

    I think it’s less certain whether the straight “Joker” headshot, divorced from the TIME cover and accompanying elements, would be parodic fair use. Such a bare image would be commenting on Obama in general, as a phenomenon, as president, as all the things we think we know about him *now,* and not the photograph itself, from 2006. That’s satire, not parody, and satire may not make it as fair use. As the Supreme Court put it in the Campbell case that you cite, “satire can stand on its own two feet” and doesn’t need to borrow from another work.

  2. Augie De Blieck Jr. says:

    Bitchville is right Weird Al, just to be clear, doesn’t legally NEED permission but does so out of courtesy. He’s killed songs when he doesn’t get permission, but he’s covered under the law if he really really wanted to.

  3. Not my DMCA says:

    So the giant TIME logo and look/feel of the magazine wouldn’t be a violation of Flickr’s terms of service? Cuz I kinda think it would.

  4. Not my DMCA says:

    Additionally, this is a PR issue, not a free speech issue. Flickr is a private organization and can allow or disallow anything it wants. From a legal perspective, if you don’t like it, host your own web space.

  5. Thomas Hawk says:

    Flickr is a private organization and can allow or disallow anything it wants. From a legal perspective, if you don’t like it, host your own web space.

    Not my DMCA, or if you don’t like it feel free to write your own blog post criticizing them over the censorship as I have done, both are valid responses to the censorship.

  6. Alex says:

    Ha ha, cnn, nbc, abc, flicker can prop up Obama all they want. He’s still the worst president ever, and more and more people realize it everyday. Be the last on the bandwagon, no one cares.

  7. Rudy says:

    Flickr didn’t censor Bush as a Vampire pic.

    http://www.flickr.com/photos/pantufla/114081011/

    Someone wants to experiment, and see if Flickr removes that image when superimposed with the TIME Magazine logo?

  8. ART says:

    TAKE IT BACK TO pHOTOSHOP, REMOVE THE WORD TIME & THE CAPTION ABOVE THEN LETS SEE WHAT HAPPENS.

  9. free says:

    freedom of speech :)its just a political parody .. people should
    lighten up .

  10. Mick O says:

    Does the fact that the image says TIME have anything at all to do with it? Would Weird Al have been successful if he named his parody “Beat It” instead of “Eat It”? Would Ralph Nader have won his battle if his commercials had an unaltered MasterCard logo in them?

  11. Thomas Hawk says:

    Mick O, what about all of the examples that NewsBusters pointed out showing the exact same Time Magazine logos used for anti-Bush imagery? http://newsbusters.org/blogs/noel-sheppard/2009/08/19/photo-sharing-website-flickr-takes-down-obama-joker-poster And if Flickr is really so concerned about this image being a copyright problem, then why are they allowing me to host the exact same image on Flickr right now? How come they haven’t taken it down off of my stream?

  12. Thomas Hawk says:

    By the way, if Flickr is *so* concerned about copyright problems with folks using Time’s masthead, then why does this Cairo the Boxer dog account get to make as many covers of Time Magazine as he wants in his flickrstream using photos of his various dogs? http://www.flickr.com/search/?q=time&w=31461230%40N00

  13. Pillowfightin says:

    ‘Tis interesting…you were basically all for censoring the woman photographing the crying kids, but now, now we’re suddenly all about free speech when it comes to art.

  14. Thomas Hawk says:

    Pillowfightin, the woman I assume you are speaking of was Jill Greenberg and I was never for censoring her, not once. I felt that what she did was abusive to children and constituted child abuse, but I never suggested that she be censored or that she not be allowed to express herself. In fact her images have appeared in a group that I admin on Flickr where I’ve had the power to censor them and I have not.

  15. bgates says:

    Erik, I absolutely can “deny that there’s a lot more public interest in everything to do with this President than there ever was for Bush”. The best quantitative indicator of “public interest” is the election; Obama has won one so far, but Bush won two. There’s certainly more media interest in this President, but that’s a pretty narrow subset of the population, and not a very representative one. Part of the mainstream, yes, but only a part.

  16. Karmakaze says:

    “the image would absolutely and unequivocally be considered parody and parody has always been one of the most effective defenses against any copyright complaint”

    I would argue that this assertion is totally UNTRUE. This image could very easily NOT meet the LEGAL definition of “parody”, and even if it did, parody is NOT a rock solid defence against copyright infringment.

    In fact in the exact same case you refer to (the 2 Live Crew case) the SC said:

    “The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”

    Now I suspect a lot of you havent fathomned just how many copyrights have been violated by that image. First the obvious Time Magazine content, then the Obama photo itself, and finally the Joker image as taken directly from a Hollywood movie. In fact there is NO original content in that image AT ALL.

    However, I think the biggest issue would be this (also from the 2 Live Crew case):

    “The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that authors work.”

    Note, the “fair use” claim must be for material that is being used to parody the ORIGINAL WORK. So in the Obama image, what is being parodied? Time Magazine? The work of the photographer who took the photo? The movie ‘The Dark Knight’? No, none of the above.

    So is it ‘Fair Use’ to use someone else’s copyrighted works to criticise a THIRD PARTY?

    I would say the legal issues are FAR MORE COMPLICATED (and thus potentially expensive for Flickr) than you claim, and as the basis for the rest of your argument rests with whether or not this would be a slam dunk in court (even a slam dunk could be expensive if Flickr had to defend it), your entire argument falls.

    Why should Flickr or anyone else be subject to potential losses (legal fees etc) to defend this image? They didn’t create it, they want nothing to do with it, and they disagree with it. Why should Flickr have to pay for anyone’s freedom of speech but their own?

    Oh by the way, don’t Flickr have freedom of speech too? Don’t they have every right not to have views they don’t agree with on their site? Of course they do! That is FAR MORE of a slam dunk than the “fair use” claim being made about this image in this blog.

    Let me put it another way: Why should the copyright holders be FORCED to participate in criticism of someone else? That is what is being done here. Now both the Time Magazine cover AND the Joker image are going to be remembered for this incident (with accusations of racism etc flying around) and they had NOTHING to do with it! How can that be consideered FAIR use?

    Sure, if the targets of the criticism were the magazine or the movie they would have little room to move, but as it is, they are being forced to add their ‘voice’ to a criticism of someone else (and potentially face fallout from it) that they may not even agree with! What about THEIR freedom of speech (or right to remain silent)?

    Sorry, but I say you are totally wrong about this issue, in more ways than one.

  17. DaVince says:

    Twitter: “Free Speech? Not on my lawn, you young whippersnappers!”

  18. Thomas Hawk says:

    Karmakaze, are you a lawyer? Beacause the only actual lawyer I’ve seen give comment on this case yet has said that this image has a strong fair use defense. Two law students that have commented as well have also indicated their opinion that the image would be fair use. I’d be interested in what other lawyers had to say and if they’d back up your claims, but I wouldn’t put much stock in your analysis that this is not a fair use image otherwise.

    Oh by the way, don’t Flickr have freedom of speech too? Don’t they have every right not to have views they don’t agree with on their site? Of course they do! That is FAR MORE of a slam dunk than the “fair use” claim being made about this image in this blog.

    Why, yes, yes they do in fact. People who work for Yahoo/Flickr *absolutely* have freedom of speech. I’d just hope that they’d choose not to impose their own personal views on politics on Flickr community members in order to express them. I think that this sort of behavior is abhorrent. I have no problem with them saying anything that they’d like on their own flickrstream or on their own personal blogs or in a public group on Flickr. But when they turn their views into censorship against other members of the flickr community with whom they disagree by violating *their* free speech rights, then I think that they take things a little too far.

    But by all means, if Yahoo is the official photo sharing property of the Obama machine let them come out and say that. I’m not sure if everyone at Yahoo though would quite see things that way — especially their current CEO, Carol Bartz, who donated personal money to the McCain campaign and probably didn’t vote for Obama. In addition to other lawyers opinions on this case I’d also be very interested to hear Bartz’s opinion.

  19. robb says:

    removed ?
    one might wonder, why so serious ?

  20. Mike says:

    @Karmakaze – while I agree with two of your points, I still think there’s a strong fair use defense for the composition as a whole. I agree that the Joker makeup scheme has to be considered, but I don’t know that the scheme itself is a copyrighted work. Is there a portrait of the Joker like this somewhere in the Dark Knight canon, or are you referring only to the makeup scheme alone?

    I agree that the amount of original work has to be considered and that it is relatively minimal here – the artist largely just put the makeup on Obama’s face and changed nothing else about the image. Still, that’s a creative act – and a political one – and collage work has been held to be fair use in the past (e.g., Koons), so this might fit into that rubric to the extent that the balance between original content and borrowed content is an issue.

    However, leaving aside the copyright status of the makeup scheme, the image strikes me as strongly parodic of the TIME magazine cover as a whole, including the TIME logo, the portrait of Obama and the other cover text/elements. As I wrote before, apart from the other cover elements, the portrait is just a headshot from 2006 and making Obama the Joker doesn’t really comment on the headshot itself, but on the larger personality of Obama that we’ve come to know in the years since. With the other cover elements, however, the Joker image does seem to parodize the original work itself. The original work is a magazine cover that advances an intimate face as a possible new leader in a milieu of nuclear rogues and Eastwood-esque heroes. Making Obama into the Joker super-villain and nihilist absolutely comments on and ridicules the TIME cover as a whole, positing Obama as not a hero who should be president but a rogue who might seize the office for nefarious ends.

    It is true that parody is not determinative. The courts apply a balancing test. Among the other issues considered are whether the new work is commercial or non-profit/educational/political, the amount of the original the new work borrows, the nature of the original work and whether the new work can/will substitute in the market for the original work. So far as I know, only the amount-borrowed factor really weighs against the Obama-Joker image here. The artist took all of the original.

    That’s significant, but I think it would be outweighed by the strong parodic nature of the Obama-Joker image, the fact that the Obama-Joker image is (so far as I know) non-commercial, the fact that the original image was new/political itself and not a commercial work, and the fact that (to the extent that TIME magazine is a commercial work) the Obama-Joker image is unlikely to replace the original in the market.

    That said, these are just some thoughts on a blog. If you know other facts that contradict these thoughts, especially whether a distinctive makeup scheme can be a copyrighted element or whether the Obama-Joker image mimicks a specific portrait of the Joker himself as well as the Obama portrait, please share them.

  21. Peter G says:

    It may be parody but it also counts as political which puts it into he highest class of protected speech.

  22. zefal says:

    My understanding is that Weird Al always gets the approval of the artist befroe doing a parity out of professional courtesy. If they don’t give their blessings then he doesn’t do the parity. He knows he doesn’t need their approval legally.

  23. Such modification would clearly fall within the bounds of transformative use and thus wouldn’t be copyright infringement. Heavy handed on the part of Flickr as ever.

    That it should be taken down because it is “offensive” as some commenters here have said is ridiculous. In an open society, it is the most unpopular speech that we should exert the most energy protecting. To paraphrase Tocqueville, the greatest threat to democracy comes not from government but from the tyranny of the majority.

  24. Karmakaze says:

    @Thomas Hawk

    I probably didn’t make myself clear. I am NOT saying that there is NO fair use claim to be made for the image.

    What I am saying, and the Supreme Court found (as I quoted in my previous reply), that just because a work is parody, even political parody, does NOT mean it has AUTOMATIC fair use exemption. As with all other copyright cases, a judge and/or jury have to weigh a series of factors in order to decide whther there is an exemption, and there is a good chance they would find there is NOT an exemption – it doesn’t matter though because even if they win, it would cost Flickr a lot of money.

    YOUR argument is that Flickr should not censor an image because it has an automatic fair use exemption, and thus Flickr could NOT be sued. I have proved that assertion false. Flickr can EASILY be sued as there are grounds to ARGUE that the use made of say the Time logo and page design to make a possibly racist (that was an accusation) parody of a third party, namely Obama, was potentially financially damaging and could cost Time sales of both magazines and advertising simply because the defendant wanted to insult someone else.

    I gaurantee you, you will not find ONE LAWYER who says it is IMPOSSIBLE to make an argument that could be litigated against Flickr, were they to continue hosting the image.

    If a lawyer can see ANY WAY to bring suit, especially if there is a good chance they would win, and the target of the suit is a company with deep pockets like Flickr, rather than some poor student, I assure you, the papers would be filed by afternoon.

    But no, I am not a lawyer.

    I am simply a person with reading comprehension, logic and reasoning skills, who can read what the law says, read the SC decision, and come to the conclusion that it is VERY POSSIBLE that Flickr could get sued, which would cost that company a lot of money to defend.

    You are expecting them to host an image that they niether created, wanted, or agree with and pay the financial costs of defending the free speech of a person they disagree with.

    When you read it like that can you now understand that what you are demanding is utterly ridiculous and is in fact the antithesis of free speech?

    “But by all means, if Yahoo is the official photo sharing property of the Obama machine let them come out and say that. I’m not sure if everyone at Yahoo though would quite see things that way — especially their current CEO, Carol Bartz, who donated personal money to the McCain campaign and probably didn’t vote for Obama. In addition to other lawyers opinions on this case I’d also be very interested to hear Bartz’s opinion.”

    Firstly – “property of the Obama machine”? I can see where your views lie.

    Secondly, I said no such thing. Freedom of Speech is NOT just what you are allowed to say. Freedom of speech is also NOT SPEAKING. Why should Flickr be forced to express a view they disagree with? The person is not a paying customer and has no right AT ALL to say ANYTHING on that site beyond what Flickr gives him at their own discretion. Don’t you get that? Ever read the terms of service?

    So forcing or even expecting Flickr to host an image of ANY KIND is the same thing as FORCING them to speak. YOU are taking away THEIR RIGHT to free speech!

    Just as you have the right to delete my messages from this blog, Flickr have the RIGHT to delete ANYTHING on THEIR SERVERS they want. Your right to fair use for parody does not even come close to outwieging that right. Flickr is not deleting ALL copies of the images just the copies they have the right to. The image hasn’t dissappeared, the student hasn’t lost his free speech, so why not just accept that Flickr is NOT a public forum and thus NO ONE has free speech there except Flickr themselves, and their say is final?

    That is now TWO reasons why your argument is wrong:

    1) Flickr can get sued and thus have every reason to remove the image regardless of their personal views (in fact they may be legally obligated to their shareholders to protect them from potential liability, so make it 2.5 reasons).

    2) Even if Flickr can’t get sued, forcing them to host an image they disagree with is forced speech, and Flickr is not deleting every copy of the picture in existence nor preventing its distribution by other means and thus the only RIGHTS being disturbed would be Flickr’s property rights to host only what they want to host on THEIR COMPUTERS.

    If your lawyer and law student friends couldn’t figure this out, then, well… they’re idiots.

    @Mike

    “I agree that the Joker makeup scheme has to be considered, but I don’t know that the scheme itself is a copyrighted work.”

    Yes it is, when it is as specific as in the picture. He hasn’t just used a clown appearance made to look rough like The Joker, he has used even the cuts and stitching on the sides of the mouth which are a major aspect of the portrayal of The Joker and are specifically refered to in the film. I gaurantee you that a portrayal as specific as that is copyright.

    If you drew a superhero with a pointy eared helm, black cape and bat on his chest, calling him Winged Rodent Man won’t save you from the inevitable lawsuit.

    “I agree that the amount of original work has to be considered and that it is relatively minimal here – the artist largely just put the makeup on Obama’s face and changed nothing else about the image.”

    As I’m sure you know if you’ve read the rest of this, I don’t particularly care about any of that, it is irrelevent. I am not arguing that there is no fair use exemption for this picture, I am saying it is ARGUABLE IN COURT that there is no fair use exemption for this image, and as defending a case in court costs money, expecting Flickr to pay is not only unreasonable it may even be illegal (I am refering to the possibility Flickr is legally obligated to protect their shareholders from any potential liability that could have been avoided).

    Simply put:

    We have NO RIGHT to post anything on Flickr’s servers.
    Flickr has a RIGHT to delete anything they want from their servers.
    Flickr may have a legal obligation to protect its shareholders from a lawsuit.
    If Flickr do not delete the image, they could be sued, and thus incur legal fees.

    Forcing anyone to pay for someone else’s free speech is unreasonable.
    Forcing anyone to say (in any form) something they don’t want to say is unreasonable.
    The argument made in this blog article is therefore unreasonable.

    Pretty simple, really. I’m kind of disturbed that some people seem to think it takes a lawyer to figure this out.

  25. Jeff Yablon says:

    Guys . . . the parody issue isn’t what’s at play here. Obama can be tweaked ad infinitum because he’s the US President. But . . . the Joker imagery is copyrighted. Maybe THAT’S what Flickr was afraid of.

    Jeff Yablon
    President & CEO
    Virtual VIP Business Coaching and Virtual Assistant Services

  26. Thomas Hawk says:

    Firstly – “property of the Obama machine”? I can see where your views lie.

    Karmakaze. You don’t know me. You have no idea where my political “views” lie. I voted for Obama. I’m a registered Democrat. I’m a Democrat who also happens to also believe in free speech, even when it criticizes my President whom I voted for.

    You said that Flickr had every right to delete political content if they want — that this is their right to self expression. I pointed out that while that is true, I’d hope that Flickr would see itself more as a community where everybody gets to express themselves, not just those who they (and even I might) agree with.

    You see that’s the thing with intolerance. If you are intolerant of others, it may just be a matter of time before they are intolerant back at you.

    And the Obama “machine” it’s very, very, much a machine. A machine better at infiltrating social media than any previous machine in the history of politics.

  27. TranceMist says:

    I am very disappointed in Flickr’s lack of character and courage.

    They act like a corporation trying to minimize risk, and when you focus on eliminating risk all you end up with is mediocrity.

  28. Karmakaze says:

    @Thomas Hawk

    “I pointed out that while that is true, I’d hope that Flickr would see itself more as a community where everybody gets to express themselves, not just those who they (and even I might) agree with.”

    Well, I like your attitude. I have several dozen hardcore but legal photos of various acts carried out by two men – some would make Maplethorpe blush. So care to give me a login to your site so I can upload a few of these images? No? Suddenly free speech on a private website doesn’t sound so good, does it?

    What you are saying is the same as that – sure taken to an extreme to make a point, but the general idea is the same. This site is your private property. You have total dictatorial control here – it is NOT a democracy, nor a public forum, it is not a government owned space. No one has any right to tell you to post something on this site anymore than YOU have a right to tell (expect, hope… whatever) that Flickr would host this image or any other for that matter.

    Just like Flickr should not be expected to host hardcore porn, they should not be expected to host this. Its their RIGHT. Don’t you get that? You think you are standing up for freedom of speech, but you are doing no such thing. You are demanding FORCED SPEECH. You are demanding a “freedom of speech” tax (in the form of legal fees that Flickr does not need to incur), and you are saying that if any person creates any artwork that they can then expect any media organisation to HAVE to distribute it, at THEIR expense.

    The student hasn’t lost a single thing. He still has use of his Flickr account, and he can still distribute the image by other means, no one is preventing that. You are advocating taking away one person’s rights, in order to “defend” someone else’s rights that have not even been threatened.

    I don’t know how I can put this any clearer to you, and I am shocked that you appprently STILL don’t understand this simple logic. The only rights being trampled on here are Flickr’s, and the only person doing the trampling is you. It’s that simple. You have niether the legal ground nor the moral ground to stand on.

    “You don’t know me. You have no idea where my political “views” lie. I voted for Obama. I’m a registered Democrat.”

    I don’t care who you voted for. You clearly have an opinion now that leads you to use loaded phrases like “the Obama machine” rather than the more appropriate “Obama administration” or simply “Obama”.

    Using words like “infiltrating” when Obama has as much right to be part of the social media as you do, makes it clear that no matter who you voted for, you are clearly disapproving of Obama now. But that is irrelevent except in so far as you seem to be doing a poor job of hiding it.

    You have every right to hold and proclaim a biased opinion, and no one has any right to tell you to say anything different. On your site, you can say, or not say, anything you want. Too bad you don’t seem to think Flickr has that right too.

    Just a side note: I noticed that out of my rather large post, with several key and related points, the first issue you address in your reply is one unrelated sentence regarding your apparent views towards Obama. Seems I hit a nerve there, huh?

    @TranceMist

    “They act like a corporation trying to minimize risk, and when you focus on eliminating risk all you end up with is mediocrity.”

    Tell that to the banks that just took half a trillion taxpeayer dollars because they DIDN’T minimise risk. I am sure they will agree; their way was MUCH better… for THEM. As for the rest of us who have to pay for their lack of mediocrity… well, we’re not so happy.

  29. Thomas Hawk says:

    Karmakaze, but Flickr is not saying that they are taking this image down because they don’t like it. They are hiding behind a DMCA takedown notice and saying that their hands were tied.

    If Flickr wants to remove the anti-Obama image because they think Obama is the belle of the ball and leave an anti-Bush one up because in their mind he’s a criminal, go for it. But be honest and say that’s why your taking it down. They are not saying that they are taking down the image because it’s distasteful, they are hiding behind a DMCA takedown notice while claiming to be a place tolerant for all political opinion. It’s the hypocrisy there that you can’t quite get your arms around.

    I am definitely NOT saying that Flickr has no right to remove any image for whatever reason that they want. They do and can. Nobody’s disputing that.

    But if Flickr wants to project an image of itself as a tolerant place respectful of all political beliefs (which is how I believe that they’d like to portray themselves) then they are going about it poorly right now.

    In terms of you posting content on my site, that’s why the my comments are open here and completely uncensored. Post a link to whatever you’d like here including your Maplethorpish imagery. I won’t delete it.

  30. Karmakaze says:

    “Karmakaze, but Flickr is not saying that they are taking this image down because they don’t like it. They are hiding behind a DMCA takedown notice and saying that their hands were tied.”

    Let me make myself clear again – I have given two perfectly valid but unrelated reasons why you are wrong. One involves the potential losses incurred by Flickr if they were to be sued, and the other involves Flickr’s right to say or not say anything they want on their site.

    The first is the most relevent to this issue in so far as Flickr claims they are minimising risk of a lawsuit. You claim that Flickr can’t be sued, and I have shown this is false. Regardless of the outcome, Flickr could indeed be sued, and they could lose, but even if they win, it will cost them a lot of money.

    The management of Flickr have the moral, if not the legal obligation to protect their shareholder’s investment, and exposing them to risk for an image that Flickr has no obligation to host would be morally wrong, if not illegal. The fact is, you are saying that Flickr should have to shoulder the costs of defending the speech of the student, when Flickr themselves have no obligation to become involved AT ALL. And in this case I am not just talking about the legal costs, but the costs associated with potential loss of revenue, damage to their image, whatever.

    “If Flickr wants to remove the anti-Obama image because they think Obama is the belle of the ball and leave an anti-Bush one up because in their mind he’s a criminal, go for it. But be honest and say that’s why your taking it down.”

    Honesty is the issue now is it? What about your apparent attempt to disguise your feelings towards Obama? You didn’t feel the need to be honest about that, did you? And don’t even try to deny it, it shows up in every word choice you make.

    Flickr have every right to hold any opinion they want including NO OPINION. If they want to get rid of the image simply because it draws too much controversy, that is their RIGHT. They are not the “Defenders of Free Speech”, they are a corporation. The ONLY obligation they have is to make money for their shareholders and obey the law of the land. They do NOT have to give reasons, valid or otherwise, for anything they do on THEIR site.

    If they feel that taking a stand for or against the image could be damaging to their public relations, then they have every right to NOT tell you why they want it gone. It’s their site. If you don’t like it, too bad.

    “I am definitely NOT saying that Flickr has no right to remove any image for whatever reason that they want. They do and can. Nobody’s disputing that.”

    Yes you are. You accused them of censorship. You are saying they are lying about their reasons. You are saying they should host content they don’t approve of, simply to “defend” someone else’s rights.

    If you believe Flickr has the right to do anything they want on their site, why are you accusing them of censorship?

    “But if Flickr wants to project an image of itself as a tolerant place respectful of all political beliefs (which is how I believe that they’d like to portray themselves) then they are going about it poorly right now.”

    You obviously never read their terms of service:

    “You agree to not use the Service to:

    1. upload, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, sexually, ethnically or otherwise objectionable or vilifying; ”

    The term’s of service make clear that Flickr may respect your opinions, but on their servers, they will only host what THEY want to host and if they find it objectionable in any way… it’s gone.

    “In terms of you posting content on my site, that’s why the my comments are open here and completely uncensored. Post a link to whatever you’d like here including your Maplethorpish imagery. I won’t delete it.”

    Well I am glad you are willing to stand by your claim. Of course you are avoiding the issue which is that it is your RIGHT to allow or disallow any content – and you know it. Just because you don’t exercise that right at the moment, does not mean you can not in the future and I am sure you will not give up that right. Flickr has the same right, and they are using it.

    Your argument basically has boiled down to this: Even though Flickr is not legally obligated to host the image, and even though Flickr may not agree with the image, and even though it could cost Flickr in legal fees and lost revenue, you think they should just have to take the hit because this student wants to be able to share this image on THEIR site even though he can easily go somewhere else if he wants.

    If you can’t see what’s wrong with that… well I don’t know what else to say.

  31. Karmakaze says:

    Sorry for the double post, but I just realised I missed a point.

    “They are hiding behind a DMCA takedown notice and saying that their hands were tied. ”

    Actually, now you are unintentionally (I assume) overstating what happened. Let me quote the first paragraph of your article:

    “Flickr had removed the Joker image due to copyright-infringement concerns, Alkhateeb says the company told him in an e-mail. A Flickr spokeswoman declined to comment due to a company policy that bars discussing inquiries about individual users.”

    So it is the student who said it was due to copyright concerns, and he did not mention a DMCA takedown notice. The company itself refused to comment.

    In any case, Flickr are actually hiding behind a “no comment” NOT a DMCA notice. If they HAD recieved a DMCA notice, then not only would they be obligated to take the image down, they would have to do so even if they totally supported it – that’s the law.

    So your objections to the “honesty” shown by Flickr are also unfounded. Flickr has not said anything about why they took it down to anyone other than the student, and until I see the email I will have to reserve judgement on whether they mentioned copyright at all.

  32. Karmakaze says:

    Oh jeez… sorry, last time, I really don’t mean to spam your comments.

    Part of the objection you have to Flickr taking down the image is your belief that Flickr can;t be sued for it. Interestingly, the guy who actually MADE the image wasn’t so sure:

    “Possibly becoming a villain in his home city wasn’t his only worry. Time’s cover and the Joker obviously aren’t Alkhateeb’s copyrights to fool around with.

    Concerned about a lawsuit, Alkhateeb, an unnamed superstar whose nationally recognized artwork had stunned friends and family, was relieved that the situation had floated for months without any major news organizations discovering that he was the man behind the paint.”

    The guy who MADE it wanted to hide, and yet you expect Flickr to take a stand for HIS rights at THEIR expense?

    Sorry, but in my opinion, you are wrong in every way about this.

  33. Monkeyc says:

    This is not remotely surprising – Ive had a personal run in with Heather and my over whelming impression was someone who believed they were the final voice at Flickr and if you did not agree then that’s your problem not her’s.

    Pornography is easy to find on flickr, but political commentary less easy – I find it interesting to see Yahoo’s attitudes and the attitudes of Flickr Management in cleaning up the site vs the DMCA and its ‘enforcement’.

  34. I Prahin (Flickr) says:

    I totally agree with your comments Thomas. (You were referenced in a Melbourne, Australia newspaper “The Age” http://www.theage.com.au/technology/technology-news/obama-as-joker-parody-sparks-censorship-storm-20090821-etca.html

    It was also a well produced image, really cool!

    BTW. Great blog!!!

  35. DaveA says:

    I’m glad they removed it, it’s now become international news and the whole world’s attention is on the image, and flickr’s aggressive policy also, whatever the motivation behind it. And look at all the lefties clambering for excuses that justify removing the image “Obama is more popular than Bush” (SO?), “The image is offensive…”, oh God I bet half you guys have T-shirts parodying George Bush.

  36. Karmakaze says:

    People are so gullible, I guess.

    The student, Alkhateeb, has said that he was NOT making a political statement, he was doing a tutorial using this image as practice (so barely makes it as speech, let alone political speech)

    Alkhateeb, did NOT want to be identified because HE expected a lawsuit.

    Alkhateeb has admitted this openly in the press.

    Flickr for their part want nothing to do with it either, and now Flickr is evil for doing the same thing Alkhateeb wanted to do? Even though Alkhateeb admitted he wasnt trying to make any statement with the photo (ooops is that the end of the fair use claim?) Flickr is supposed to expose themselves to lawsuits to defend Alkhateeb’s ‘free speech’?

    Remember Flickr pays the cost of hosting those images, pays the cost of dsitributing it over the net when someone downloads it, and now people expect them to pay legal fees too…

    All for a picture the guy doodle together while at school and doesnt give a damn about and wanted to not be identified as the author of?

    Yeah, Flickr are such assholes, aren’t they?

  37. Nathan says:

    This is why I, as a photographer, avoid flickr. Nasty.

  38. Stacey says:

    I do find it rather upsetting that flicker removed the photo, yes it is there site and when you post -anything- on there site it is subject to change or removal, and I do not particularly think that the photo was removed do to any ‘pro-obama’ bias or such, but more because they saw the amount of views and wanted to remove the photo and not risk any sort of ‘problem’ that might have arrived from the photo. And that seems to have bitten them right in the ass. I do think that flicker is obviously restricting the users freedom of speech and undoubtedly that of other users. And in a time like now, when we have the first black president and are fighting a war Flicker seems to want to avoid and political bru-ha-ha, which again has bitten them in the ass. Flicker is also the first photo/social networking sight that i have heard of removing such images. I know a rather large number of people who have posted anti-obama photos and who have even made entire profiles dedicated to nobama-ism and they have not been removed. the fact of the matter is yes it might be offencive to some (certainly NOT to me) but some people find obama himself offencive. if someone is aloud to post pro-anything images then people MUST be aloud to post anti-anything images. thats just the way freedom of speech works. some people like something some dont and they both let people know. not to allow someone to do so is well, an infringement on the first amendment and democracy.

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