Flickr has adopted a less severe way of handling copyright infringement claims after heated debate erupted about a photo of president Obama modified to look like The Joker from the film of DC Comics' The Dark Knight.
Previously, certain copyright infringement complaints were met with the removal of an image. If the complaint was overruled, the Flickr member who posted the image was allowed to repost it. However, after the Joker Obama case, Flickr decided to merely replace the image in question with a message, a move that means the discussion below the image is preserved, which eases republication if the removal is overturned.
The move illustrates the complexities that have arisen in the digital era where photos can be transferred and modified with ease. Copyright law is a much older concept than the internet, although it has been renovated a bit relatively recently with the Digital Millennium Copyright Act.
Under the DMCA, a party holding copyright to a photo or other work can request that a website remove content posted by a third party that infringes the copyright; the website can avoid liability in the matter if it takes down the work in question when it receives the notice of infringement. The DMCA also includes a provision to allow the third party that published the content to challenge the claim.
The Joker Obama image was swept up in this DMCA process in August. The resulting discussion led the Yahoo photo-sharing site to change its policy on Tuesday.
"Upon receipt of a complete NOI [notice of infringement], the US Copyright Team will replace the image with a new static image that bears the following copy: 'This image has been removed due to a claim of copyright infringement,'" said Heather Champ, Flickr's director of community, in a comment.
The change was the suggestion of a Flickr user, The Searcher, and Flickr said it liked the idea.
The Obama Joker image was posted on the Flickr site of Firas Alkhateeb, who told the Los Angeles Times he created the Obama Joker image using Photoshop and a Time cover photograph. The Obama Joker image spread farther after somebody else created a poster with the image and the word "socialism".
However, Flickr removed the image after it received a DMCA notice of infringement, Champ said in a forum posting.
Among those to criticise the move were Thomas Hawk, an outspoken critic of what he sees as Flickr censorship and the chief executive of Flickr rival Zooomr. He argued in a blog post that the image qualified as a parody under the fair-use provision of copyright law, which permits some uses of copyright material.
"Whatever you may or may not think about this image and its appropriateness, the image would absolutely and unequivocally be considered parody, and parody has always been one of the most effective defences against any copyright complaint," Hawk wrote.
TechCrunch's Mike Arrington said in a blogpost: "In the past, Flickr has deleted accounts of users who are critical of president Obama, but as far as I know, nothing like this was done to users who were critical of Bush. It's clear that the Flickr team wanted to take this image down."
However, image copying and modification permissions can vary according to context. While creating a parody from an image might be permitted under fair use, copying that parody might not be.
And there's evidence some original rights holders are not involved. Photographers' blog Photo District News reported that Time and DC Comics both said they hadn't sent Yahoo the DMCA notice, and that the office of the original Obama photographer, Platon, wasn't even aware of the controversy.
Hawk also quoted the DMCA notice Flickr sent Alkhateeb in a letter that identified the infringement complainant as Edward Przydzia.
Yahoo has yet to detail its rationale for removing the image, saying its privacy policy forbids it from discussing particulars of the situation. However, it did indicate politics were not involved.
"There appears to be a whole lot of makey-uppey going in the news and blogosphere about this event," Champ said in a forum post. "We very much value freedom of speech and creativity… I'm not sure how complying with the law has led to the idea that we [the Flickr team] have a particular political agenda."
