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:
https://www.hollywoodreporter.com/thr-esq/cardi-b-face-lawsuit-distinctive-tattoo-album-cover-1234057

Link to Frankfurt Kurnit Klein & Selz original article, penned by legal blogger Brian Murphy:
https://advertisinglaw.fkks.com/post/102fpy6/the-man-with-the-tiger-and-snake-tattoo-redux

Link to Lexology article:
https://www.lexology.com/library/detail.aspx?g=5c9c232c-38f5-4c27-a19f-b779c6e3d304&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-08-30&utm_term=
 
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: 
https://advertisinglaw.fkks.com/post/102fpy4/planning-to-use-digitally-altered-photos-of-your-competitors-product-in-your-adv

Lexology version:
https://www.lexology.com/library/detail.aspx?g=af5b35d9-8d37-424f-a496-e4655a3b287e&utm_source=lexology+daily+newsfeed&utm_medium

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:
https://www.sociallyawareblog.com/2019/08/20/the-meme-generation-social-media-platforms-address-content-curation/#page=1

Lexology link:
https://www.lexology.com/library/detail.aspx?g=ceab05f6-7bbf-4bf4-aae4-6b78dd267f49&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-08-22&utm_term=

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:
https://pearlcohen.com/news/2019/09/01/ninth-circuit-certifies-privacy-class-action-against-faceboo/

Lexology article:
https://www.lexology.com/library/detail.aspx?g=e387c728-2994-4597-9b03-dcde8294484f&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-09-05&utm_term=
 
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 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

The Trouble With Memes

This week, this writer noticed that at least two legal blogs are warning about Memes.

For the purpose of this discussion, a meme is an image or short clip of video, to which a caption is added by someone other than the copyright owner of the image or short clip, and it is forwarded across social media by thousands with no regard to the copyrights of the copyright owner, or the moral rights of the subject of the image.

Meme enthusiasts would probably say that the use of the image is "transformative", or that the use is "fair", because the image is only half the work, and the text is the other half --which is not a definition of Fair Use-- or that it is commentary, or parody, or being used to disseminate news or opinion, or to educate.

Memes are like emoticons. They are a quick, convenient way for the inarticulate to spread someone else's expression of an opinion without having to think for themselves. To date, the re-tweeter has also been able to share the meme without any liability or responsibility.  That may change, even if copyright law explicitly protects parody, criticism, and pastiche.

Legal blogger Georgia Shriane for Boyes Turner LLP (specializing in European Law and UK law) warns that meme law is coming....

Lexology link:
https://www.lexology.com/library/detail.aspx?g=1191618e-8200-49db-b9d7-c89d494d5546&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-03-29&utm_term=

The original article can be found here:
https://www.boyesturner.com/article/article-13-meme-law-is-coming

Even if the meme is protected, if content platforms use automation to filter out copyrighted images, the bots may not perceive the difference between "a good meme" and copyright infringement. That's not all.

See also, from 2017, commentary on a weeping athlete, with a question about the consequences if this meme is used for commercial advertising
https://www.internetandtechnologylaw.com/unauthorized-meme-crying-jordon/#page=1

Also, see the commentary by Claire Jones of  Novagraaf  for when memes are used gratuitously, with the sole apparent purpose of tormenting a public figure:
https://s3.amazonaws.com/documents.lexology.com/78503cc7-93e3-470e-8a7d-37ffcbee9a56.pdf

Or read it on Lexology...
https://www.lexology.com/library/detail.aspx?g=c470fc1e-d61e-4f98-a3b3-d113233998db

The most ominous shot across the bows for meme sharers comes from legal blogger  Jordyn Eisenpress  writing for the law firm Frankfurt Kurnit Klein& Seltz PC  "Popular Meme Account Sued For Copyright Infringement And Other Claims.   

Read it on Lexology  (but beware, gentle readers: there is a very vulgar word as part of the defendant's twitter handle.)
https://www.lexology.com/library/detail.aspx?g=33280fc3-a77a-41c2-b429-f998d6f22556&utm_source=lexology+daily+newsfeed&utm_medium=html+email&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-03-28&utm_term=

Or find the very recent original here, (also including the shocking handle).
https://advertisinglaw.fkks.com/post/102fh6p/popular-meme-account-sued-for-copyright-infringement-and-other-claims

Apparently, meme enthusiasts in New York should take note, and be very careful going forward.

All the best,
Rowena Cherry