“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.