Does Flickr Censor User Content Over Blatantly Fake DMCA Notices?

Does Flickr Censor User Content Over Blatantly Fake DMCA Notices?

Update: When adding an extra letter to last name that Alkhateeb had provided me, I was able to pull up what appears to be another artist who would appear to be claiming the Joker/Obama image as his own creation. The details are still fuzzy and am just basing this update on some Google searches that I’ve found with the new name. I have contacted this artist and am trying to determine if he in fact is the person who filed a DMCA takedown notice with Flickr over this image and if he is claiming the Obama/Joker creation as his own in contrast to previous reports from Alkhateeb and the Los Angeles Times that Alkhateeb is the image’s creator. I’ve also contacted Alkhateeb to discuss the claims of this individual. I will report back when I learn more.

For the past week or so I’ve been reporting on the Flickr Censorship case involving Firas Alkhateeb and his popular Joker/Obama Time Magazine cover. You’ll recall that Alkhateeb had posted his image to his Flickr account, garnered over 20,000 views, along with many comments on the image, saw the image subsequently used with the word “socialism” printed underneath it in Los Angeles and various other cities as street art… and then Flickr nuked his image and all the comments that went along with it.

Many bloggers and news outlets accused Flickr of censorship and political bias in the removal of what was seen by many as a clear fair use parody image critical of the President. The case made the national press and with an EFF attorney adding that Alkhateeb indeed had a very strong fair use defense. After a substantial amount of critical press over the image, Flickr Community Manager Heather Champ finally came out defending Flickr over the issue saying that Alkhateeb’s image had been removed from Flickr due to a “a complete Notice of Infringement as outlined by the DMCA (Digitial Millenium Copyright Act)” In the same breath Champ accused the press and blogosphere of being “makey uppey.” Shortly afterwards, the thread where Flickr users were complaining about this image deletion was shut down by Flickr staff.

Later that day in reporting on the issue The Los Angeles Times asked Champ who had issued the DMCA takedown request and Champ replied that Flickr was not able to give that information out. “I don’t know how this crazy game of telephone got started,” Champ wrote. “I’m not sure how complying with the law has led to the idea that we (the Flickr team) have a particular political agenda.”

Yesterday I reported on PDN’s efforts to get to the bottom of this takedown request. PDN contacted the logical parties who might have objected to this image. Time Magazine (whose logo was incorporated in the image), DC Comics (who would own the rights to the famous Joker image used on the Obama photo) and Platon (the photographer who had taken the original image used by Time). All three parties denied having filed a DMCA takedown notice with Flickr, which lead people to wonder all the more just who the hell *did* file the takedown notice.

While Alkhateeb originally stated that flickr had not told him who filed the request, after looking more closely at the email sent by Flickr he realized that they did in fact list the name of the person who had filed it. At first the way that it was presented was confusing to Alkhateeb and he thought the name that they gave him was a Yahoo representative’s name and not the person filing the report.

So who filed the report?

Well because Alkhateeb is currently working with lawyers on the case he asked me not to publish the name flickr provided him, but Alkhateeb has shared the name with me and after having seen the name, what I can say is that it wasn’t Time, DC Comics or Platon, or any other party with any possible plausible IP interest in this image. In fact, the name that was given is very likely a totally bogus made up name entirely. A google search for the odd name turns up zero results and even a google search for the last name alone turns up zero results for that surname. It’s like someone just typed random characters on a keyboard to make up the name used in the DMCA takedown notice.

The fact that the name filing the DMCA takedown notice would appear to be totally fake leaves one to wonder. Does Flickr just blindly pull down any content when any DMCA request is presented? If so that’s not very reassuring. If, for instance, “Donald Duck” or “Bob Xjibtstruytubopluy” claimed copyright over images in President Obama’s stream, would they simply remove these images as well? Somehow I doubt they would. Or was Flickr staff aware that the takedown request was bogus and instead decided to use it as cover to remove an image that offended their own clear personal and political sensibilities? A few months earlier Flickr nuked an entire account of a user who wrote critical remarks on President Obama’s photostream.

Whatever the case, I do think it is disingenuous at best for flickr to try and hide behind a clearly bogus DMCA notice when dealing with criticism over their decision to remove this image. Many people last week were led to believe by statements by Champ in Flickr’s Help Forum and in the press that Time or DC or the photographer had complained to flickr about the image and Flickr never bothered to clarify about the legitimacy or illegitimacy of the stated notice.

Transparency, fairness and a willingness to communicate openly with your community ought to be the hallmark traits of a site that is dependent upon their users for their content. By hiding the illegitimacy of this complaint, Flickr has shown themselves yet again trying to sweep their actions under the rug dismissing negative criticism with half truths. It is ironic that they would accuse the press and blogosphere of being “makey uppey” while in the same breath hiding behind a clearly bogus DMCA request on their own.

So what should Flickr do at this point?

Well, given that the DMCA takedown notice was bogus (and even had it been by an actual interested party Alkhateeb would have had a legitimate fair use to the image) they should apologize to Alkhateeb and restore his image and all of the comments that they nuked along with it.

Of course it is worth pointing out that even though former Flickr Founder and Flickr Chief Stewart Butterfield called it a “mistake” for Flickr not to have a mechanism to restore staff deleted content over two years ago that still today Flickr has not built (and is not working on) the ability to restore staff deleted content. So even if Flickr wanted to at this point they couldn’t put Alkhateeb’s image back. While Alkhateeb may be allowed to reupload the image in the future, his original image (along with all of the comments to the image and all of the links to his now dead deleted image) is pretty likely gone for good.

And that’s too bad.

The Associated Press Says That They Own Famous and Iconic Shepherd Fairey Obama Image, Photographer Mannie Garcia Says, “Not So Fast”

Was the Iconic Shepherd Fairey Obama Hope Image Taken by Freelance Photographer Mannie Garcia?

The Associated Press is out this morning claiming copyright ownership to what will certainly be considered one of the most famous and important images of this century.

The image in question was also one of the most used images in the Barack Obama Presidential Campaign and also now sits in the National Portrait Gallery in Washington DC. The image was seen all over the United States, from graffiti in San Francisco to dorm rooms in Iowa. And apparently now the Associated Press has decided it wants to muscle in on a little of the ca-ching going on.

From CNN:

““The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement released Wednesday. “AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

Anthony Falzone, Fairey’s attorney, says fair use protects his client’s rights from using the photograph as a basis for his image. The concept of fair use allows breaches of copyright law based on the degree to which the original image is used, among other factors.

Fairey, a Los Angeles street artist, has said he found the image online and created his now-famous depiction in early 2008. He says he has not profited at all from the work, which he donated to the Obama campaign.”

Fairey is claiming fair use rights, but the bigger question really is does the Associated Press even *own* this image at all. If it turns out that they do not, they may come out looking like even more like the idiots that they were painted out as a while back when they decided that they wanted to start going after bloggers for quoting their stories.

Both Shepherd Fairey and the photographer who took the original image, Mannie Garcia, agree that the image was originally taken by Garcia. And now Garcia is saying that he owns copyright on the image not the Associated Press. It also seems that Garcia is a really cool guy and while wanting to be recognized as the original photographer, he isn’t trying to milk this thing for all it’s worth personally like your friends over at AP.

In an interview over at Photo Business Forum, in fact, Garcia has said that the majority of any money due him from this photo at all he’d like to see go to charity.

“Now, monies – monies that might be made by me signing my photograph. I am concerned, that the image out there – I would like very much to figure out a way that my signature on a photograph that I made of then Senator now President Obama, that maybe the monies = most of it – could be donated to the American Red Cross, children’s cancer research, and women’s breast cancer research. This is not about me making money off this, it’s about recognition. I made the most iconic image of our time, and I’d like it to make a difference, not make me money. I’m a blue collar photographer – I am out there on the grind every day. I spend more energy looking for work than doing work. I just want Shepard Fairey to say “alright, you’re the guy. Thank you.””

In terms of the APs claim of ownership of the image, Garcia states that he was not a staffer for the AP when he took it, that he wasn’t even an AP freelancer, but rather a temporary hire with no contract and that the ownership of the disputed image belongs to him.

And I think he just may be right on this. Without a contract with him signing over his rights to his photos to AP, as far as I’m aware Garcia ought to own the rights to his work.

Now there are a lot of ways this might unfold. It might be that it doesn’t matter if the AP or Garcia took the original image, that it’s use might be considered fair use. I’m not an attorney, but I think there is a real case to be made here.

It might also turn out that AP has no rights to the image. They have no contract with Garcia and sans contract any ownership of the image likely would go to him.

Personally I think it’s very unlikely that the AP will get control over this very popular image. Which means that they may end up looking like money grubbing jerks yet again if/when they lose. Even if they win, enough people are probably impressed with the way that Fairey gave all of the money made on the image to the Obama campaign that they’ll still end up looking bad trying to squeeze him.

If the AP were smart, I’d think that they’d be better off right now from the start agreeing that no money would go to them if they do have any coming, and that instead any money raised would go to charity and Garcia. Garcia could of course also choose to give his portion largely to charity as well if they recovered any.

It will be interesting to see how this one turns out.

Wordle Comparing President Obama’s Inagural Address With President Bush’s Farewell Speech

Wordle Comparing Obama's Inaugural Address vs President Bush's Farewell Speech

The wordle above compares the Inaugural Address presented earlier this morning by newly elected President Barack Obama (top) with President George Bush’s Farewell Speech (bottom).

No matter what your politics, we are very fortunate to live in a country where every 4 or 8 years a peaceful transfer of power takes place based on Democratic elections.

You can read President Barack Obama’s entire Inaugural Address here. You can read a transcript of President George Bush’s farewell speech here.

View large here.