Category: Copyright

Khloe Kardashian’s Instagram Copyright Mistake

Lens photo by mrbrainous

For all the attention paid to music and motion picture piracy, the most chronically infringed works via the internet has got to be photographs.  The speed and volume with which photos are uploaded and redistributed by both commercial and non-commercial users is so constant that it occasionally results in some amusing—if not infuriating—mistakes.  Like the time in February of 2013 when the Fox News site posted a photo of newlyweds kissing atop the Empire State Building above a headline that read:  To be happy, we must admit that men and women aren’t ‘equal.’ In response, the forces of the internet had a blast letting Fox know that the pair depicted in the image are both women—the first same-sex couple to wed after New York State legalized these unions.

Such gaffes are not limited to people espousing uptight social values, of course; but this kind of mistake says a lot about the use of images today because such a dumb error, presumably made in haste, implies that nobody involved with the Fox story bothered to seek—or probably even consider—permission to use the image.  It was taken by photographer Richard Drew and is registered with AP along with a standard description on its web page, so it would be pretty hard to legally license the photo without realizing that it depicts a same-sex couple.

It is an understatement and a half to say that social media platforms have fuzzed-up general understanding of permission to use photographs today, even for certain professionals who should know better.  When photography collides with celebrity and social media, though, I guess we should not be surprised that Khloe Kardashian (or someone who works for her) didn’t know that she needed to obtain a license from the rights holder, even to display an photo of herself on Instagram.

The photo, taken by Manual Muñoz, is a fairly typical, professional-quality paparazzo’s capture of Kardashian walking toward camera in 1/4 profile, reportedly heading into a trendy Miami restaurant.  The copyright in the image is owned by Xposure Photos UK LTD, which had sold a limited license to the Daily Mail, whence it is alleged that Kardashian copied the photo to her Instagram account without permission and, in the process, removed the rights management information from the image. Thus, Kardashian is potentially on the hook for violating three sections of the U.S. Copyright Act—the right of reproduction (§106(1)), the right to publicly display a pictorial work (§106(5)), and removal of copyright management information (§1202(b)).

The complaint filed by Xposure specifically notes the commercial nature of Kardashian’s use, alleging that “…every one of Kardashian’s Instagram posts is fundamentally promoting something to her 67 million followers.”  While commercial vs non-commercial use is not dispositive in determining whether or not an infringement exists, it can factor considerably in the kind of relief a plaintiff may be granted by the court.

Khloe Kardashian is a business, what marketing professionals call an influencer—someone whose social media following is so large that they earn fashion shoots, paid appearances, and endorsement opportunities worth millions of dollars.  As such, Xposure would seem to be on solid ground in pursuing the upper limits of relief for damages. Their argument that “every photo promotes something,” should carry considerable weight, even if that something is Khloe Kardashian herself.

The distinction between personal and professional use of a platform like Instagram is something any user, not just celebrities, should more carefully consider.  I suspect it’s become so habitual at this point to share images as rapidly as they’re made that even public figures with professional management teams forget that they have the same legal considerations to make before publishing on social media as if they were proposing to publish an old-school print campaign.

Additionally, because platforms like Instagram provide the opportunity for people to create their own celebrity by blurring the line between “private” and “public” moments—for instance, displaying provocative selfies alongside professional fashion photos—mistakes like Kardashian’s are almost inevitable.  According to the Wikipedia entry for Kendall Jenner, Vogue dubbed the crossover between social media self-promotion and the world of professional fashion modeling as the “instagirl era.” And as Vanessa Friedman recently noted in The New York Times, being this kind of influencer can come with unanticipated liabilities, like the possibility that the models who helped promote the disastrous Frye Festival may be named in the class-action lawsuit against event organizers.

All prospective instagirls and instaboys, especially those who don’t have Kardashian resources, should remember to consider the rights and implications of a photo before publishing.  Anyone using, or hoping to use, social media to grow their own brand as influencers or creators, should be wary of the anti-copyright messages suggesting that these legal considerations are obviated by the relative ease of distribution via digital platforms.  The authors of those opinions will not be defending you in a litigation.

Don’t Confuse Copyright With Publicity, News, & Commentary

I caught a piece of a conversation on The Talk about this story, with the celebrity panel largely focusing on the lack of rights enjoyed by public figures.  The discussion segued rather quickly from copyright to privacy, commenting on the fact that Kardashian is not allowed to use this image without permission, but then contrasting this fact with the apparent contradiction that she also would have a hard time removing invasive or embarrassing images captured by the types of paparazzi who trade in wardrobe malfunctions and other salacious forms of “news.”

While I personally sympathize with public figures when they’re the targets of cheap, gimmicky invasions that serve only puerile social interest, the fact remains that one price of celebrity is an abandonment of privacy because public figures are—in a first amendment context—always news. Just about any image of a public figure that is legally obtained counts as reportage, protected by the first amendment—even wardrobe malfunctions and other moments of human folly.  One may also lampoon or otherwise comment upon a public figure by altering their images, as long as that alteration doesn’t implicate libel.  Such alteration could violate a copyright, but it will not have anything to do with the publicity right of the person in the image.

The right of publicity is protected at the state level, hence varying statutes, but the general principle is that no individual or entity may use the likeness of either a private person or a public figure for the purposes of endorsement of a business, a political message, a social agenda, etc. without that individual’s permission.  Even users of stock photos should note that there are often separate model releases requiring that licensees get permission from the models for any use that would be considered endorsement.

When it comes to violating the publicity right, the same factor that makes Kardashian’s alleged copyright infringement (i.e. that she’s a famous brand) potentially more expensive would also give her claim more heft if she were to seek damages for unauthorized use of her likeness for the purposes of endorsement.  In short, the fact that she is news gives the paparazzo’s photo a market value that she has no right to control or infringe; but at the same time, her likeness is also valuable to advertisers, which she has every right to control and protect.   General discussion of theses stories occasionally conflates these principles.

Solicitor General Says No Cert for “Dancing Baby” Case

 SCOTUS Photo by jgroup

After ten years and what must be thousands of attorney hours, the “Dancing Baby” case may have to do an about-face at the steps of the Supreme Court and, get this, actually go to trial. On May 5, the Solicitor General filed its brief recommending that SOCTUS deny a writ of certiorari in Lenz v. UMG, finding no basis for this Court to address the following question:

Whether a copyright owner may be held liable under Section 512(f) [of the DMCA] for sending a notification of claimed infringement based on a sincere but unreasonable belief that the challenged material is infringing.

At this point, the artist whose work was at the center of this case has been lost to the world (about this time last year); the baby is now a tween; and the case remains a hypocrisy-rich boondoggle, from its overall justification, to the particulars of the argument that the EFF has pursued, to the unavoidable misperception by some of the public that Prince personally bullied a fan.

Regarding the underlying rationale for Lenz, in the decade since it began (and not as a DMCA case by the way), no party has presented any solid evidence that rampant abuse of the DMCA takedown provision even exists. Yet, this has been the rationale and lead talking point riding on Prince’s purple coattails, trading on his fame to spotlight an incident that makes a poor example of actual abuse. Of course, the better examples don’t involve pop stars, cute babies, or major music labels.

The central hypocrisy in Lenz, other than the decade-long fishing expedition, which I tried to summarize in this post, is that the EFF has gone to great lengths to argue that a rights holder should be held to a very high standard of “knowledge” while the organization conversely advocates that no platform owner or ISP can ever know about infringement, or much of anything else, that occurs via their services. In simple terms, the EFF asserts that if defendant UMG did not conduct a fair use analysis of the “dancing baby” video, that this fault alone meets the statutory definition of “knowing misrepresentation,” which is a much stricter standard than general error.

The EFF has shouted repeatedly—and no doubt it will continue to shout—that no ISP or platform service provider can “police all the activity” on the web. This premise is generally accepted by rights holders, both large and small, and it is of course a foundation on which the compromises of the DMCA were born in 1998. Yet, this same organization has now leveraged a decade’s worth of litigation to evangelize the message that rights holders ought to be able to monitor, without error, DMCA filings that number in the tens of millions. And if an error is made, even after it is corrected according to statutory process (i.e. by counter-notice), the fault still rises to the standard of “misrepresentation,” which carries a burden of damages. The fact that damages, in this case, would mean that UMG would have to pay the EFF for the cost of its expedition is an absurdity that is hard to overlook.

In the brief filed by the Solicitor General recommending that SCOTUS deny cert in Lenz, the opinion specifically cites what it calls a “significant legal error” in the way in which the statute has thus far been interpreted. Section 512(c) of the DMCA lays out the manner in which a takedown notice must be filed, including a statement of “good faith belief” that the use in question is infringing. Section 512(f) provides for the types of relief for damages that either a rights holder or a user may seek if a wrongly-filed notice or counter-notice meets the standard of “knowing misrepresentation.”

The EFF has sought to argue that because UMG failed to do a fair-use analysis of the “dancing baby” video, this amounted to “knowing misrepresentation.” I and others have already commented on the inherent subjectivity of fair use that makes this argument problematic whether a rights holder does the analysis or not; but here’s what the SG brief says with regard to the statute itself:

“Petitioner … assumes that the phrase ‘misrepresents under this section’ in Section 512(f) ‘includes a misrepresentation that one has formed a good-faith belief required under Section 512(c). But that is not what the statute says. Although Section 512(c) specifies a number of representations that a takedown notice must contain, the only representation that (if knowingly false) can give rise to liability under Section 512(f) is the representation that the challenged material ‘is infringing.” If petitioner’s video did not actually constitute a fair use, respondents’ statement that the video was infringing was not a ‘misrepresentation,’ whether or not respondents conducted any fair-use inquiry before sending their takedown notice. [Emphasis added]

The court of appeals’ analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in case where the challenged material actually was infringing. This case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals’ decision.”

In reference to the words emphasized above, this is an important distinction. If a rights holder specifically instructs employee(s) filing notices to avoid all fair-use analyses in an act of “willful blindness,” this is typically held to be equivalent to “knowing misrepresentation” under the law. Merely screwing up, missing, forgetting, overlooking, etc. does not rise to that level. Moreover, common sense says that the DMCA was designed to be an extra-judicial, compromise solution to the inevitable reality that users of ISPs would infringe copyrights. Such a solution could not have assumed that rights holders would never make a mistake or that a mistake would be tantamount to “knowing misrepresentation” implicating damages.

Meanwhile, wherever courts do seem to find acts of “willful blindness” among platforms and ISPs (e.g. Backpage and Cox), the EFF is consistently on the service provider’s side, unwaveringly defending safe harbor shields as though they are inalienable rights rather than conditional provisions. And by the same token, we are not likely to hear the EFF argue that a user who files a counter-notice to restore a file—a party more likely to err than a rights holder like UMG—ought to be held to the same “knowledge” standard they’re seeking in this case. Because, as the SG brief observes, Section 512(f) applies to “misrepresentation” by a filer of either a notice or a counter-notice. So, users might want to be careful what the EFF wishes for on their behalf.

This misread of the statute, in the opinion of the brief’s authors, is a key reason why the Solicitor General recommends denying cert—because the Supreme Court is a “court of review, not a court of first view.” In theory Lenz v. UMG could keep dancing for quite some time—right through Holden Lenz’s college years, annual tributes to the late Prince, legislative revision of the Copyright Act itself, and who knows what kind of changes among various web platforms and ISPs.

Net Neutrality Fight Brews

Composite sources by zmiter & maximmmmum

When the President of the United States disses fundamentals from climate science to the separation of powers, it is admittedly a very difficult time to debate any issue outside the gravitational pull of so much regressive momentum. Amid a flurry of truly dangerous policy reversals, the storm now brewing over the issue of Net Neutrality will doubtless be subsumed by the broader narrative of “Trump rollbacks,” but this generalization only clouds our ability to assess what’s actually happening in an already obscure area of cybernetic policy. Especially through the chaos of social media. (Add to this, the recent kerfuffle over the FCC possibly taking action against CBS for a joke made about Trump by Stephen Colbert, and we’ve got a whole circus, but we’ll stick with Net Neutrality for the moment.)

First, let us pause to acknowledge this dichotomy: the fact that we choose to interact in a walled garden like Facebook as complicit lab rats in that company’s grand data experiment while posting declarations that the web must remain “free” and “open” is a delusion that must be reconciled before considering an issue like Neutrality. Free and open are nice words and easy to support with a mouse click, but what’s really at stake here?

The order that FCC Chairman Ajit Pai proposes to reverse—for the moment anyway—is not actually Net Neutrality itself; and the real question before us is whether the chairman will merely deregulate or will instead live up to any of his prior testimony and help to shepherd a more effective and comprehensive policy aimed at achieving Neutrality principles. As noted in my last post on this subject, the FCC rules only affect ISPs, and if we truly want an internet that protects all parties great and small, then a coherent and consistent regulatory framework must be pursued for edge providers as well.

In practical terms, it seems to me that there is little value in saying that ISPs (AT&T, Comcast, etc.) may not discriminate via broadband while edge providers (Google, Facebook, etc.) are free to discriminate via algorithm. And in simple terms, this was the crux of Pai’s dissent in passing the 2015 order which placed ISPs under Title II of the Communications Act, giving the FCC power to regulate these providers as “utilities.”

It is important to remember that Net Neutrality is a goal and not a specific policy doctrine. Its principles go back to the days of dial-up, and as attorney and expert Mitchell Lazarus argues in his blog, regulating ISPs as “utilities” through the 1990s was a key reason why we had more competition among this class of providers than we do today—when most markets are served by a monopoly or duopoly at best. But, in an earlier post from October 2014, Lazarus also explains why placing ISPs under Title II of the Communications Act alone would not achieve Neutrality—partly because internet traffic simply does not ebb and flow like phone service for which Title II was designed. Lazarus writes …

“An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is ‘fair’. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.”

So, Chairman Pai’s plan to reverse the rule placing ISPs under Title II does not in itself “roll back Neutrality” because one cannot roll back what has not been achieved. Having said that, it seems that Lazarus would not endorse reversing the Title II status so much as adding to it “…a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs.” These competitors would pay to use the channels, and consumers would once again have options to switch ISPs if they become dissatisfied with the service, according to Lazarus’s assessment.

Whether or not the monopolistic state of the ISPs can be reversed or mitigated, the same problem exists on the edge provider side of the equation, with a company like Google owning most of search and advertising in the U.S. and Europe, along with one Amazon, one Facebook, etc. It seems to me, we consumers cannot expect an effective approach to the goals of Neutrality without meaningful and complementary regulation by both the FCC and the FTC of both ISPs and edge providers.

In a nutshell, the FCC’s job is to protect consumers vis-a-vis access to the web while the FTC’s job is to protect consumers as we interact with edge providers once we’re on the web. And it is unclear at the moment what happens when a company functions as both access and edge provider.

It’s mostly about corporate interests for now.

Be prepared for this fight to at least sound existential in the rhetoric to follow from places like the Electronic Frontier Foundation. Be prepared for the story to be positioned as an Obama-for-People v Trump-for-Corporations narrative—and for the Neutrality tornado to fling about all manner of unrelated topics (did someone say SOPA?). But for now, this battle seems to have more to do with very large corporations on both sides—and very little to do with consumers. Mostly it’s over the issue of who is going to pay for what.

Large users of broadband—Netflix is the world’s leader—are not the companies that invest in the physical hardware to expand access, speed, and reliability. And there is an extent to which the ISPs, which do make these investments, see Neutrality regulations as keeping the access prices paid by these huge edge-provider services artificially low. There is more to learn on this subject as the story unfolds; but this follow-the-money line of inquiry is likely more accurate than taking at face value the story that the Obama-era rules were providing meaningful consumer protections.

Net Neutrality & Copyright

In both real and fictitious ways, the Neutrality fight is likely to implicate copyright and the interests of rights holders. Because Neutrality principles are based on the premise that universal access to the web is a civil right, remedies for online infringement like throttling speeds or account termination become unavoidably intertwined in the public debate over Neutrality. This may foster exaggerated and misleading headlines claiming that major rights holders (i.e. Hollywood) are against Neutrality. But there is no underlying reason why copyright enforcement cannot coexist with Neutrality principles, and I worry that persistent confusion will rally creators to lobby against their own self-interests.

In this guest post, for Hypebot, No Internet, No Music: Why Musicians Should Care About Net Neutrality, Will Meyer has the right spirit but is making an important error in my view. The understandable instinct to assume that President Trump wants to gut protections for independent creators obscures the fallacy in which Meyer seems to conflate edge provider Facebook with the ISPs affected by FCC rules. He writes, “… the truth is Facebook isn’t free. We pay with our data and we must pay with our dollars if we want the algorithm to take our bands seriously.” Absolutely right. And, in a slightly different context, Ajit Pai said essentially the same thing in his dissent over former Chairman Wheeler’s proposal to place ISPs under Title II.

More relevant to Meyers’s concerns is the fact that Pai specifically noted that having two separate regulatory regimes for ISPs and edge providers only entrenched the market advantage of the latter, which goes directly to the heart of some of Meyers’s observations about using Facebook for promotion of his band. This does not mean Pai gets a free pass; it means creators need to look way beyond the rhetoric to follow how the policy will affect them.

Evolving Neutrality policies in both the U.S. and abroad should be closely watched by copyright interests because the statutory frameworks can make a difference with regard to enforcement. Neutrality is meant to protect access and dissemination of legal activity online, and there is an extent to which the public debate becomes mangled by those who view both broadband and access to unlicensed content (i.e. piracy) as interrelated “rights.”

As indicated in previous posts, I advocate a wait-and-see approach to Chairman Pai’s policies, not because I inherently trust his view; but because the 2015 framework for ISPs doesn’t really seem to achieve the consumer-facing goals that people think it does. Unfortunately, this probably won’t stop the hyperbole from flying in every direction, which is unlikely to help the development of a more coherent policy.