This is the kind of shit that makes you want to stop blogging:
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.
C.E.O. Vegas Exotica
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.
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).