Sunday, September 08, 2019

Transformative? Permissionless Use Of Distinctive Body Parts, And Other Images

Cover art issues affect authors. We can learn from the woes of other artists.

For instance, there is the case against a mix tape recording artist who appears to have borrowed part of the  distinctively decorated, largest organ on a man's body in such a way as to suggest (at least to the man in question's friends and family) that the man was intimate with her.

Beware of using other people's tattoos in cover art!

Link to Hollywood reporter article by Eriq Gardner:

Link to Frankfurt Kurnit Klein & Selz original article, penned by legal blogger Brian Murphy:

Link to Lexology article:
The lady's lawyers claim that her use of his tattooed back skin was transformative, because she only used
part of it, and put it between her legs. The kicker --for her-- is that a "Transformative Use" defense is only useful if defending against a claim of copyright infringement.

Please read the articles to see what *is* being litigated.

And then, there is the case of the digitally altered woodpecker... in which a woodpecker was digitally placed in a digitally darkened and deepened hole where no actual woodpecker had gone before.

The complaint was that this was a derogatory display of fake news, designed to call attention to a competitor's product's shortcomings, as Jeff Greenbaum, blogging about Advertising Law for the law firm Frankfurt Kurnit Klein & Selz (again!) explains.

However, the woodpecker does not have standing to sue for being shown in a false light. To see the offending woodpecker, check here:

Lexology version:

Authors are more likely to make "Transformative?" use of a meme, than of a rival author's cover art, but --word to the wise-- the rules for exploiting memes are a-changing.

Legal blogger Aaron P. Rubin, writing  for Morrison and Foerster LLP's Socially Aware blog (about the law and business of Social Media) explains about the different layers of liability, and the importance of a platform's Terms Of Use to would-be exploiters of other people's memes, created from yet other people's copyrighted film stills or photographs.

Original link:

Lexology link:

Finally, for today, authors and their friends in particular should be aware of their biometric privacy rights.
Legal bloggers Dotan Hammer and Haim Ravia, writing for the lawfirm Pearl Cohen Zedek Latzer Baratz cover the case against Facebook's photo tag suggestion tool.

Original article:

Lexology article:
Might you be part of the class and not know it?  Being tagged is annoying enough without Facebook tools suggesting that one should be tagged based on robo-face-recognition.

All the best,

Rowena Cherry 

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