Unfair Garfield

You probably saw something funny here last Wednesday:



Zachary reviewed Garfield, and we ended up with an image that is arguably funnier than most Garfield strips. Or at least more original.

So what happened?

Either Photobucket, or Uclick, or "Paws Inc," has a 'bot that looks for copyrighted material. Something somehow figured out that this was a Garfield strip (File compare? Image recognition? - there's a project for a High School programming class: "write a program that detects the three unique patterns in a Garfield strip. For extra credit try to use a 'for' loop") and when it was found Photobucket replaced it with this image.

The name of this site is Daily Comics Review. We review comics. Daily. Our assumption here is that our use of the strips fall under "fair use."

Let me quote the law for you, right off of Copyright.gov:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism (emphasis added) for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Since we're getting all legal here, let me make something clear: I am not a lawyer. I'm a dog trainer. This is not legal advice and if you think taking legal advice from a dog trainer is a good idea well, you need a lawyer a hell of a lot more than you think.

Let's assume that our use of the works for reviews is not a question, mainly because it's not. You can't read the same strips here every day, so we're not republishing other people's content and providing a free or cheaper alternative. We don't display a strip without saying something about it either. We either compare it to another or provide some sort of commentary about it.

Most of the syndicated strips we review appear daily, either 5, 6, or 7 days a week. Pulling out a single strip and reviewing it would be an "excerpt in a review".

Could one make an argument that pulling an entire daily strip is not an excerpt? I guess. But in Michael Savage v. Council on American-Islamic Relations, Inc. the court found that use of a 4 minute clip of Savage's radio program was fair use when CAIR created one for criticism. One does not need to restrict oneself to unrecognizable tiny pieces of a work in order to write a review. How do you review a strip without the strip?

In Sedgwich Claims Management Services, Inc. v. Delsman a court found use of photos in critical advertisements acceptable. So using an image — like a comic strip — for a review or criticsm would seem to be safe too.

(I got both of these cases from the Electronic Frontier Foundation, over here and then tracked down my own summaries.)

Can you make money while claiming fair use? Does Entertainment Tonight make money? Does Roger Ebert? Or more to the point, does the Garfield minus Garfield site run ads?

This is hardly a new issue on the Internet. In 1998 the infamous Digital Millenium Copyright Act (DMCA) became law. A major provision of this act was the ability for a copyright holder to issue a "takedown notice" demanding that their content be taken offline.

On the surface this seems like a great provision. Why shouldn't copyright holders have a legal recourse to protect their content? The problem lies in the law of unintended consequences (if you believe that they are really unintended.) Takedown notices have led to a chilling effect on sharing, especially on services like Photobucket, Flickr, Facebook, and YouTube.

Copyright holders with deep pockets (not necessarily to be confused with content creators, by the way) can easily make these sites very uncomfortable by sending nasty notices, threatening expensive lawsuits that they can afford and the sites cannot.

Take for example, what happened to a college professor teaching a course on copyright. She uploaded a 30 second snippet of a football game in order to show her class the warning that the NFL places on each of its broadcasts, in order to maintain its firm grip on films of large sweaty men jumping on top of each other:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

Keep in mind: 30 seconds out of what was probably a 3 hour broadcast (that showed what was probably 11 minutes of actual football…but I digress.) She received this from YouTube, after they disabled the video:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by National Football League claiming that this material is infringing:
(etc.)

Seriously. I can't make this stuff up. Excerpting the copyright warning violated itself. I'm surprised playing the video didn't open some sort of a logic wormhole.

Photobucket has a page dedicated to copyright and their terms of use.

Did you see the section on fair use? No, of course not. There isn't one! The only terms under which you can make a counter claim to a takedown notice is that the content was identified incorrectly.

"I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."

Trying to use the form to claim "fair use" would constitute perjury!

In a way, I can't blame them. There's a good chance that trying to support fair use could put them between a rock and a hard place. Better to bully the users than risk an expensive lawsuit.

Fair use is under siege. But what can we do?