File this one under DMCA don'ts:
Last month, the folks at Photoshop Disasters and Boing Boing noticed that Ralph Lauren had done some rather horrific photoshopping of a fashion model in one of its ads (on right). Both sites mocked the horribleness with brief, but clearly critical, comments.
"Make her head bigger than her pelvis! Do it!" wrote Photoshop Disasters.
"Dude, her head's bigger than her pelvis," gasped Boing Boing.
Naturally, both blogs saw a torrent of comments of people laughing, pointing, and noting that this kind of photoshopping is exactly the sort of thing that drives women's self-esteem down the tubes. But that was about as much publicity as the posts got.
Enter an apparently cranky Ralph Lauren. Claiming that the blogs infringed on its copyright in the hideously doctored photo (and presumably also fearing that the label would see a backlash for promoting emaciation chic even more blatantly than the fashion industry's norm), Ralph Lauren sent DMCA takedown notices to the hosts of both blogs. (You can see a copy of the notice sent to Boing Boing at the Berkman Center's own Chilling Effects Clearinghouse.)
Photoshop Disasters' host, Blogspot, caved automatically, as is sadly the norm. (The post is still available through Google's cache, fortunately.) But Boing Boing and its ISP, Priority Colo, held firm, arguing that posting the photo is protected as fair use.
I certainly agree with them. Breaking down the four fair use factors of Section 107 of the Copyright Act, they seems to weigh heavily in favor of Boing Boing.
The first two factors strongly support a fair use defense. The purpose of the post was clearly, clearly criticism, so we've got a transformative use, which greatly favors Boing Boing. The photo, as a commercial depiction of goods, is arguably a more factual sort of work (artificial emaciation aside), which also weighs in favor of fair use.
The second pair of factors are a little trickier, but ultimately I think Boing Boing wins on them as well. While the blog did copy the entirety of the copyrighted work, which is generally a strike against fair use, the work here is a photo. Photos just don't lend themselves to "excerpts" the way text and video do. And given the nature of its commentary, Boing Boing had to copy the entire photo in order to make its point intelligible, so I think they're okay here.
And as for the "effects on the market" factor, yes, the blog posts might harm Ralph Lauren's sales. But as Chilling Effects' Wendy Seltzer told Boing Boing, "If criticism diminishes its effectiveness, that's different from the market substitution copyright protects against." In other words, if Boing Boing hurts Ralph Lauren's market by pointing out Ralph Lauren photoshops its models to look like Jack Pumpkinhead, tough noogies.
So, confident in its fair use claim, Boing Boing posted a promise to Ralph Lauren that no, it would not takedown the scary-stick-lady photo. Instead, it would mock Ralph Lauren mercilessly.
Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:
a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;
b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and
c) Offer nourishing soup and sandwiches to your models.
The combination of threatened legal action and Boing Boing's righteous recalcitrance has turned this into just the sort of negative publicity bonanza that Ralph Lauren almost certainly hoped to avoid by filing the DMCA takedown. The legal foofaraw drew the attention of ABC News, FOX News, The Times of London, Forbes, and various other mainstream news agencies who all, of course, reposted the freakish photo. And the blogosphere was all over it too, including Jezebel, The Register, Techdirt, The Huffington Post, and a host of others. (Reproducing the photograph for purposes of news reporting and legal commentary is also a highly transformative use, and the other considerations discussed above largely apply in this context as well.)
With the photo now on full display across the media world, Ralph Lauren had to fess up to the photoshopping. And indeed it did, reports Extra.
On Thursday, Polo Ralph Lauren released the following statement about the retouched ad: "For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."
Sadly, they have yet to apologize for their frivolous DMCA takedown requests, says Boing Boing.
But on the whole, I think Ralph Lauren got just what it deserved. So kudos to you, Ralph Lauren! Through your hamhanded legal threats, you have put the spotlight on the designing world's self-destructive vision of women while simultaneously highlighting the foolishness of trying to silence valid, legally protected criticism. Here's to a job well done!
(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)
