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Media The Courts

Photoshop Disaster Draws DMCA Notice For Boing Boing 391

Posted by timothy
from the need-to-fatten-that-one-a-bit dept.
Pickens writes: "Cory Doctorow writes that Ralph Lauren issued a DMCA takedown notice after Boing Boing republished the Photoshop disaster contained in a Ralph Lauren advertisement in which a model's proportions appear to have been altered to give her an impossibly skinny body with the model's head larger than her pelvis. Doctorow says that one of the things that makes their ISP Priority Colo so awesome is that they don't automatically act on DMCA takedowns and proceeded to dare Lauren to sue. 'This is classic fair use: a reproduction "for purposes such as criticism, comment, news reporting," etc,' writes Doctorow. 'Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings.' Doctorow adds that every time Lauren threatens to sue he will 'reproduce the original criticism, making damned sure that all our readers get a good, long look at it,' 'publish your spurious legal threat along with copious mockery,' and 'offer nourishing soup and sandwiches to your models.'"
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Photoshop Disaster Draws DMCA Notice For Boing Boing

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  • by rimugu (701444) on Thursday October 08, 2009 @02:05PM (#29683667)

    It is kind of sad to think that some people will think she looks perfectly normal. Event though they have never seen someone like that, just other adds, tv, etc.

  • by MikeRT (947531) on Thursday October 08, 2009 @02:05PM (#29683669) Homepage

    The DMCA needs to be updated to have two points in it:
    1) Filing a claim that isn't supported by copyright law is fraudulent under the good faith premise of the filing process
    2) No guilty intent on the part of the filer is necessary for it to be civilly or criminally actionable.

    If you're some dumbass who files a report that is incompatible with the law, without knowing what the law says, no matter how right you thought you were, you should be guilty.

    This is one of the few areas where my instinct says that a guilty mind should not be necessary at all to punish someone.

  • by Mr. Underbridge (666784) on Thursday October 08, 2009 @02:07PM (#29683687)
    ...these morons are going to figure out the whole Streisand Effect thing. Keep screwing yourselves, fellas.
  • by SoupGuru (723634) on Thursday October 08, 2009 @02:08PM (#29683699)
    The fact that anyone so much as had the idea to butcher the female form to that extent makes me want to raise any daughters I might have on some deserted island somewhere. That they actually went through with it... well, I'm speechless.
  • by TiggertheMad (556308) on Thursday October 08, 2009 @02:10PM (#29683713) Homepage Journal
    One of the BB posts, noted that falsely issuing DMCA notices might be construed as abuse of process. If any real lawyers are lurking out there, could this be used as a counter tactic? What is the likely hood that you could make such a charge stick to the plantif or their counsel?
  • I'm confused... (Score:5, Insightful)

    by aztektum (170569) on Thursday October 08, 2009 @02:14PM (#29683761)

    The ISP is in Canada? Why should they comply with a US law?

  • fuck the law (Score:4, Insightful)

    by LordKaT (619540) on Thursday October 08, 2009 @02:17PM (#29683805) Homepage Journal

    blind obedience to words written by the social elite only keeps the populace oppressed.

  • by dickens (31040) on Thursday October 08, 2009 @02:19PM (#29683835) Homepage

    I think that if my healthy, athletic, 13yo daughter saw that picture you would get a Duane Johnson-esque eyebrow and a lifelong aversion to anything with the Ralph Lauren label.

  • Re:I'm grateful (Score:4, Insightful)

    by commodore64_love (1445365) on Thursday October 08, 2009 @02:19PM (#29683841) Journal

    P.S.

    The U.S. Congress should ban the use of Photoshop and other digital manipulation for photos used in advertising. In fact all they really need to do is amend the "truth in advertising" laws.

  • by Anonymous Coward on Thursday October 08, 2009 @02:21PM (#29683859)

    Be careful not to over react. If these proposed fraud provisions for the DMCA are too punitive, they themselves risk being abused.

    For example, a big corporation steals a digital asset, and then ties the small fish up in court; forcing the small fish to prove they didn't commit fraud in filing the DMCA. Good faith is a principle in law for a reason... don't discard it in haste.

  • Re:I'm grateful (Score:5, Insightful)

    by SoupGuru (723634) on Thursday October 08, 2009 @02:24PM (#29683897)
    Have you been discussing this on Yahoo or reddit?

    I don't come to slashdot for the bleeding edge news, I come for the insightful (well, sometimes) discussion of the interesting news stories that might be a day old.
  • by mpoulton (689851) on Thursday October 08, 2009 @02:27PM (#29683951)

    One of the BB posts, noted that falsely issuing DMCA notices might be construed as abuse of process. If any real lawyers are lurking out there, could this be used as a counter tactic? What is the likely hood that you could make such a charge stick to the plantif or their counsel?

    The DMCA itself provides for penalties, both civil and criminal, for false takedown notices - it's perjury, and probably tortious interference with a business relationship. However, this case is not so clear-cut. They reproduced the ad in its entirety, unmodified. The fact that they subsequently ridiculed it may or may not really make this fair use. Most likely it does, but arguments exist both ways. Thus, there is enough law to make the takedown notice non-perjury.

  • Re:wth (Score:5, Insightful)

    by vorpal22 (114901) on Thursday October 08, 2009 @02:36PM (#29684035) Homepage Journal

    I propose that photoshop-skinnying models is probably analogous to heavily salting food: the more you do it, the more desensitized you become to it, until you reach a point where it still seems natural to you but ridiculously overdone to everyone else.

  • Re:I'm grateful (Score:5, Insightful)

    by mcsqueak (1043736) on Thursday October 08, 2009 @02:39PM (#29684059)

    The U.S. Congress should ban the use of Photoshop and other digital manipulation for photos used in advertising.

    I don't know how easy it would be to do. You shouldn't just have a blanket banning of Photoshop, because it can be used to reproduce a lot of valid darkroom techniques, such as color adjustments, contrast, levels, dodge and burn, etc... things that are legitimate and need to be done to most photos.

    It is awful the digital manipulation like this is used, however... and it just looks flat out FAKE. You can tell when someone has been over-Photoshopped because they just look "off" somehow.

  • Re:I'm grateful (Score:4, Insightful)

    by MarkvW (1037596) on Thursday October 08, 2009 @02:39PM (#29684061)

    You couldn't ban digital manipulation of photos used in advertising.

    Advertising speech gets first amendment protection, albeit not as much protection as policical speech, for example. But it does get protection.

    One obvious First Amendment problem that you run into is overbreadth.

    There are a lot of good uses for Photoshop in advertising--like making really cool surrealistic advertising videos, for example. Such videos are not misleading and there is no legitimate interest in regulating them. Any law that would bar their production merely because they were digitally created would violate the First Amendment.

  • by VoxMagis (1036530) on Thursday October 08, 2009 @02:47PM (#29684181)

    Yes, the DMCA is stupid.

    Now, can I ask WHY people buy T-Shirts, undies, etc from big designers?

    I just don't see why you would buy something for $100 from a designer label when you can buy something without a name on it for $4. I mean, the amount of marketing that has to go into this must be insane! It would be one thing if the big fancy labels used legitimate, well-paid, non-sweatshop labor to make these things, but I don't see that happening.

  • by denis-The-menace (471988) on Thursday October 08, 2009 @02:53PM (#29684249)

    While they're at it, how about creating a "truth in News reporting" law. .. no obligation to report truthfully, and the First Amendment protects their right to lie.

    http://en.wikipedia.org/wiki/Monsanto#In_USA [wikipedia.org]

  • by TheABomb (180342) on Thursday October 08, 2009 @02:55PM (#29684269)

    You might as well ask why peacocks display their plumage.

  • by davebooth (101350) on Thursday October 08, 2009 @03:16PM (#29684447)
    According to her online profile, unphotoshopped that model is 5'8" and wears a size 6, measuring 33-24-35. No need to alter those proportions at all.
  • by Etrias (1121031) on Thursday October 08, 2009 @03:18PM (#29684479)
    Seriously? Look at the photo. It's comical to the point of exaggeration. It's the type of photo you stare at for awhile to figure out what's wrong with it. You're meant to look at the damn thing!

    Besides, this is an advertisement. PR wonks at Ralph Lauren probably are laughing about this because people like us are trying to stir up a shit storm about it. The entire purpose of advertising is for it to be seen and for people to start talking about it and guess what...that's what we're doing right now.

    Now you can argue all that you want that they don't prefer that people post the photo just to criticize it and I would agree with you there. Lawyers probably stepped in and fired off a DCMA request just as a matter of trying to protect the brand...but in it's relation to the Streisand Effect? You're crazy. You said so yourself that you have zero interest in them and that the Streisand Effect is working beautifully...yes, for them. For Ralph Lauren. Because you, I am assuming a pretty Joe Above Average Geek, are talking about a fashion company and delighting in the fact that this picture now is drawing more looks from people. That is what I call irony.

    Again, the Streisand Effect should be about trying to take down something that people don't want shown--then backfiring by drawing attention to whatever it was they were purporting to suppress. The purpose of advertising is to get as many eyeballs on their brand as possible using whatever techniques they can and where outright trickery is actually admired. Which do you think is actually happening?
  • Re:I'm grateful (Score:5, Insightful)

    by Whorhay (1319089) on Thursday October 08, 2009 @03:28PM (#29684609)
    And if we were to ban photoshopping in advertisements what would be next, banning makeup? It's just not going to happen and if it did it wouldn't be worth the trouble. Just push for honesty in advertising in general and hope for the best.
  • by schon (31600) on Thursday October 08, 2009 @03:28PM (#29684611)

    The ISP in question is Canadian.

    I attended a talk by Michael Geist, where he said that 30% of Canadian ISPs comply with DMCA takedowns. This figure was presented by some pro-copyright lobby as "shocking" evidence that Canada is a lawless place where copyright isn't respected.

    Geist agreed that it was shocking - but for a different reason. He said it was shocking that 30% of our ISPs caved to a law from a foreign country, and complied with a request they had no legal requirement or authority to obey.

  • Re:I'm grateful (Score:5, Insightful)

    by Old97 (1341297) on Thursday October 08, 2009 @03:30PM (#29684635)
    The U.S. Congress should ban the use of Slashdot to propose unconstitutional laws.
  • Re:I'm grateful (Score:2, Insightful)

    by ubrgeek (679399) on Thursday October 08, 2009 @03:48PM (#29684889)
    Yeah, that'll happen right after the Big Mac that I order ends up looking just like the one in the commercial.
  • Re:I'm grateful (Score:3, Insightful)

    by mcsqueak (1043736) on Thursday October 08, 2009 @03:56PM (#29684991)

    Have fun clicking that link in print. :P

    Because, you can't, you know... type it into a web browser. They could also implement a QR barcode you could take a picture with using your phone. Seems like a semi-reasonable idea to me.

  • Re:I'm grateful (Score:5, Insightful)

    by roc97007 (608802) on Thursday October 08, 2009 @04:04PM (#29685093) Journal

    Agreed, banning photoshop is nonsensical. It's not the tool, it's the use to which it is put.

    This sounds like a job for the swarm. There's a lot more people out there with photoshop experience, able to spot these kinds of manipulations, than these companies could hope to pursue. Let's not leave it just to Photoshop Disaster. If a few thousand geeks pursue them relentlessly, we could see real results.

  • Re:I'm grateful (Score:5, Insightful)

    by mamer-retrogamer (556651) on Thursday October 08, 2009 @04:30PM (#29685465)

    [Photoshop] certainly is an extremely useful tool and can't be banned outright, however, they could impose very clear limits on retouching photos of people.

    Who is "they" and how would they impose these arbitrary limits on photo retouching?

    The problem isn't necessarily with the advertising agencies who are trying their best to fool us that their client/product is "better" than they actually are. That's what they've always done and that is what they will continue to do.

    The problem is with the increasing number of people in our society who lack critical thinking skills and don't question what is presented to them.

    What's nefarious about this particular DMCA take down notice is that its only purpose is to squelch critical opinion on advertising techniques. (It is also just another example of how the DMCA has little to do with copyright protection and is more about handing over control of our culture to the media companies).

  • by H0p313ss (811249) on Thursday October 08, 2009 @04:56PM (#29685831)

    Canadian's

    Somebody shoot me.

  • Re:pa-ra-pum (Score:1, Insightful)

    by Anonymous Coward on Thursday October 08, 2009 @05:08PM (#29686003)
    Lighten up, Francis
  • by civilizedINTENSITY (45686) on Thursday October 08, 2009 @05:31PM (#29686259)
    "The court held that Fox News had no obligation to report truthfully, and the First Amendment protects their right to lie. Therefore, the court held that firing a reporter for refusing to lie is not actionable under the whistleblower statute. The story can be seen in the feature length documentary film The Corporation." The Corporation is where I first heard of this. Journalistic Ethics is becoming a contradiction in terms. Activities should be categorized as "entertainment", or "journalism", or "advertising", and obviously different legal standards need to be applied to each. An informed public being necessary to the workings of a democracy, this is beyond stupid and well into a dangerous zone. As the law currently stands, behavior approaching that of treason is not actionable. In a democracy we've really only ourselves to blame for letting this happen to us, too.
  • So what? (Score:5, Insightful)

    by Roger W Moore (538166) on Thursday October 08, 2009 @06:31PM (#29686893) Journal

    Actually DMCA takedown notice is a benign part of that act, unlike anti-circumvention provisions.

    So what? It is NOT the law in Canada. We have laws guaranteeing public access to healthcare which are benign - does that mean that the US should be required to follow Canadian law? The correct response from the Canadian ISP should be to mail back an elementary school book explaining about how countries are different with a suggestion that they read it and learn something.

    I would also dispute how benign it actually is because it can be used to intimidate people into taking down material that they are legally entitled to show such as the case here.

  • Re:wth (Score:2, Insightful)

    by TheRon6 (929989) on Thursday October 08, 2009 @07:07PM (#29687199)

    I propose that, for the simple reason that any male involved in fashion is gay (not a homophobic troll, hear me out!)

    *Goes on to imply that men participating in stereotypically feminine activities or caring about their appearance is wrong for no particular reason other than it being "gay" and that having such interests somehow makes men inherently weak.*

    Yeah... not a homophobic troll at all.

  • Re:I'm grateful (Score:4, Insightful)

    by interkin3tic (1469267) on Thursday October 08, 2009 @07:16PM (#29687271)

    It is awful the digital manipulation like this is used, however... and it just looks flat out FAKE. You can tell when someone has been over-Photoshopped because they just look "off" somehow.

    It is pretty sickening that Madison avenue has so distorted our view of how women should look that they're starting to move INTO the uncanny valley.

  • Re:So what? (Score:4, Insightful)

    by tomhudson (43916) <barbara.hudson@D ... com minus painte> on Thursday October 08, 2009 @07:43PM (#29687469) Journal

    Nope - culture, publishing, etc. was specifically EXEMPTED in NAFTA.

    And if you want to end NAFTA, be our guest. We'd love to see the provisions that guarantee you access to our specific percentages of our water and energy lifted, now that the auto makers aren't keeping up with keeping a proportionate share of production in Canada (I'm looking at you, Ford!).

    Don't forget - we're your #1 supplier of petroleum products - more than Saudi Arabia. If NAFTA goes, we can charge less for oil in our domestic markets, and grab a significant chunk of what's left of US manufacturing. And what you don't want to buy, China will be happy to take.

  • by tokul (682258) on Thursday October 08, 2009 @11:36PM (#29688789)

    According to her online profile,

    She is also eighteen, vegetarian and likes puppies. How do you know that online profile is not "photoshoped"?

  • by the_womble (580291) on Friday October 09, 2009 @01:48AM (#29689323) Homepage Journal

    You own the copyright and they are representing themselves as your agent under penalty of perjury?

    It sounds like they should be in trouble. The question is who it is up to to sue them.

  • Re:I'm grateful (Score:1, Insightful)

    by Anonymous Coward on Friday October 09, 2009 @05:08AM (#29690111)

    Does that include the use of digital camera processing? Air brushing? The use of mirrors? Composite shots? Make-up?

    I have an idea, instead of arbitrarily banning things you don't like in an ill thought out and short-sighted knee jerk reaction you could try to improve the education of the people who fall for this crap.

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