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A Peek Behind The Curtains

This is the kind of shit that makes you want to stop blogging:

"You have till Monday June 21st to remove all images of Lana(NSFW)"


The details are in the extended entry to this post. I spent a good portion of the weekend working on the response, background legal research, and collecting screen caps.

As much as I'd like to fight this; the story is now in the archives and ancient history. It seems sort of pointless to worry this much about a thumbnail picture to a story that was yesterday's news.

I'm open to advice though...

Update: Rather than remove the picture, I just removed the face and replaced it with a question mark.

Complaint from Vegas Exotica

I am writing on behalf of Vegas Exotica, the company who shot Lana's pictures and owns the copyright to them. I find it very insulting to my model and my companies name your use of our pictures, not to mention illegal. You have till Monday June 21st to remove all images of Lana or charges will be filed against you.

S. Douglass
C.E.O. Vegas Exotica
My reply:

I will assume you are referencing this post:

The post stands as it is now. A thumbnail image of a portion of a graphic is "fair use" (see Google Images) or the the US 9th Circuit Court of Appeals decision (PDF).

If you have further complaints I would direct you to my DCMA Compliance Notice (which is shown on every page).

Followup message from Vegas Exotica:

The post you referred to is correct. The head shot you are displaying of Lana was shot in our studio, with our photographers, on our dime. It was not intended to be used for slander. A thumbnail image of a portion of a picture would be considered "fair" game if indeed you were using a thumbnail size of a portion of a picture that would not lead to identifying the subject of the picture, the company the model works for, and the company itself. What you are not seeing is that Lana is one of Vegas Exotica's top models and the picture you are using is displayed not only on the front of their website but also for advertising purposes. We will not tolerate the use of pictures we paid for and shot in confidence with our models to be used in such a fashion. Again I ask politely to remove all pictures of Lana under Vegas Exotica copyright or expect a call from our Lawyer Mr. Jeffrey Burke concerning the legalities of this situation.

S. Douglass
My reply:

The model in question was part of a news story (i.e. O.J. Simpson's reality TV show). Before you throw a term like "slander" around you should really find out what it means. Your lawyer can explain it to you as well as the legal concept of "fair use". There are no factual inaccuracies in my story, as such it is not libelous. Comments to the post are the responsibility of the parties that made them.

The thumbnail on the story is very low resolution, blurred, and 150px wide.

I advise you to read the court decision that I linked. The Kelley decision finds that thumbnailing (smaller versions of the original which cannot be enlarged without losing resolution) are "fair use."

You may also want to review Nunez v. Caribbean International News Corp. In it the First Circuit found that copying a photograph that was intended to be used in a modeling portfolio and using it instead in a news article was a transformative use. By putting a copy of the photograph in the newspaper, the work was transformed into news, creating a new meaning or purpose for the work. Read it here (PDF).


Comments (10)

Ouch!{insert odd r... (Below threshold)

Ouch!

{insert odd reference to 'slice & dice' here}

Souns like a case-in-point ... (Below threshold)

Souns like a case-in-point for a collective blogger attorney business. Exchange free advertising for legal services?

Wow. Bravo.Far too... (Below threshold)

Wow. Bravo.

Far too often people are intimidated into giving up their rights by the threat of unjustified lawsuits. Much too often, people are unaware of those rights.

Was the e-mail you sent a pre-prepared boilerplate?

Is there some guide that bloggers can get so they too have the legal facts to toss back to would be intimidators, and can be sure that they are complying with copyright law?

Shawn I wrote it myself, th... (Below threshold)

Shawn I wrote it myself, that's what took so long. Feel free to borrow whatever you want.

I got an actual letter from... (Below threshold)

I got an actual letter from an attorney the other day saying I was violating copyright by using some poem. I couldn't find it on my site anywhere.

I sent the attorney an email telling me that, given the nature of the site, I'd need a URL of the actual page that has the poem. I haven't heard back.

Amazing, on one hand there'... (Below threshold)

Amazing, on one hand there's a butcher who is trying to make money on the crime he committed, and on the other hand is a shark trying to threaten you because you are giving free copy to his client.

It's enough to make you scratch your head and wonder what the hell is going on...

You are a nicer man than me... (Below threshold)
Paul:

You are a nicer man than me.. My first reply would have contained the letter F and U. If they mailed again, my second reply would be to give them my attorney's name.

Since parody is well-covere... (Below threshold)

Since parody is well-covered by the first amendment, maybe you should stop being strictly informative.

Parody is "fair use" as wel... (Below threshold)
Corey:

Parody is "fair use" as well. However, I don't know if sarcasm counts as parody per se.

This Vegas guy should realize that currently, there are at least 10 people that now know who lana is, and that is exactly 10 more people than there was prior to Kevin's posting. She may have now achieved international fame...

That OJ thing is hilarious. Why can't he just keep his mouth shut, hang out in Miami, and never show his face again? Is it that hard to live off a 4 million dollar pension that civil judgments cannot reach? Does he really need to resurface to do a TV show? And does it really have to be one based on the thoroughly exhausted concept of a hidden camera? Further, doesn't OJ recognize that if he is popping up from behind bushes saying to unsuspecting people "you got juiced," he is probably going to scare the living hell out of them? And that noone will laugh, but just be really creeped out? I guess it really can't get any worse than it already is. Or can it?

this is a good website and ... (Below threshold)

this is a good website and i got a lot of infomation form it i was doing a report on and this was my number one site thank you so much. kristen




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