Photoshop Disaster Draws DMCA Notice For Boing Boing

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.'"

Another shot of the model, more realistic

[RichMan]

Found the link in a BoingBoing comment
http://www.ralphlauren.com/product/index.jsp?productId=3558821&camp=affiliate_k108283 [ralphlauren.com]
She looks more human here.

I work where they do a lot of these photoshoots

[alen]

don't work for anything fashion related, but in the same area in NYC. i see some of the models going in and out of the building and i swear in real life it's like they are auditioning for Schindler's List 2

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Let me be the first to say

[nomadic]

Here she is for real. [gearpatrol.com]

Re:I'm grateful

[Anonymous Coward]

In France they recently passed such a law if I'm not mistaken. Just wait a few decades for it to blow over.

Re:Let me be the first to say

[corbettw]

Here's one of her in another RL ad where she doesn't hover so close to the uncanny valley. [blogherbaldiet.com]

Re:Too open for abuse...

[modecx]

Filing a false DMCA notice is already an act of perjury, a potentially criminal act in this case. Of course, unless it's related to taxes or bearing false witness at a criminal trial, that crime almost always goes unprosecuted. Just make it easier to file a complaint.

In a way it would be silly to waste the time and resources for such a petty thing, but it would be fun to send a message, especially to boneheaded law firms. If a few lawyers were locked up for a short time, I bet the casual filings of these notices would disappear overnight, the burden of proof would be strongly elevated, and this law could be used as intended--and not as a means to censure unpopular opinion.

its satire, should be protected

[circletimessquare]

http://www.metnews.com/articles/2009/legalcommunity012909.htm [metnews.com]

When courts are presented with a satire case, they don't say "this is a satire, so we will give it extra latitude." Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis. Satires are an unspoken subset of fair use, which often causes confusion among parodies, satires, and jokes.
Courts haven't said much about the intersection of satire and fair use, although several cases provide insight into how it might be treated if the court were to consider the issue:
The most recent case involved the artist Jeff Koons. He was paid $1.6 million to create a series of paintings entitled the "Easyfun-Ethereal" for Germany's Deutsch Bank. He culled advertising images and his own photographs, scanning them into a computer and digitally superimposing the scanned images against backgrounds of pastoral landscapes to comment on the ways in which our most basic desires are depicted in popular images. In one particular instance, Koons scanned a photo by Andrea Blanch, titled "Silk Sandals by Gucci," which was, as the title suggests, a photo of a pair of woman's feet wearing Gucci sandals. Blanch had shot the photo for a Gucci ad. Koons incorporated part of the photo into his own artwork, which depicted four pairs of women's feet and lower legs dangling over images of various dessert dishes.
Blanch, recognized her photo. She was not happy. She sued.
She lost.
The court explained the satire in detail by describing the social comment being made, rather than sticking the satire label on the painting. In fact, the court doesn't mention the word. The court focused on the first fair use factor (the purpose and character of use), and said it weighed in favor of Koons' appropriation because the use of the photo was transformative and because its purpose was to demonstrate how advertising whetted our various appetites, not to sell shoes for Gucci. Koons used Blanch's work to comment on its social meaning rather than to exploit its creative virtues.

Re:wth

[Not_Wiggins]

More up-to-date, BB has posted [boingboing.net] that Ralph Loren has admitted a "my bad," and that they promise to be more diligent about it in the future. Scroll to just above the comments.

Re:It is kind of sad to think

[Anonymous Coward]

Saline implants have generally replaced older, silicone implants.

Re:I'm grateful

[CherniyVolk]

I worked in a Print Shop for several years. Don't give me any of that dark room crap please. On one hand, you are right but you are intentionally blind to the exploitation that *will* take place giving *any* leniency to those in marketing and advertising. Their habitual lies resemble that of a heroin addiction in that, only a fool would suggest they might have any restraint.

I'm tired of looking at advertisements. Of all the hamburgers I have ever eaten, not on has every looked remotely close to any of the hamburger advertisements for their respected establishment. EVER! Yet, the laws aren't in-place or enforced to ensure their advertisements are somewhat *accurate*? The only restaurants that has ever had reasonable display advertisements for their food are the 24hr Mexican food shops in Southern California; where they literally pick a random plate for a customer and take a picture, print it out and post it on the board.

Is that what I want in advertisement, the grainy messy photos? YES! Because that's what you get at those establishments, and the images are damn accurate to what gets plopped in front of you! Bravo for the Roberto's of Southern California. If I want a artsy and obviously fake photo, I'll look for my computer's backdrop on deviantart.com.

There is a measurable bounds here somewhere. While the skinny girl in the Ralph Lauren is so grotesquely obvious, I think everyone finds it to be equally obvious that much of any printed advertisement, is too, faked/corrected/enhanced or otherwise some sort of visual trickery like a weird angle off-color lights, accents and hilights, or any single or combination of other stupid tricks on presentation and aesthetics.

It should all be banned from advertisement. If they want the burger to look good, then make the burger look good; it's a disservice to higher an artist to draw up a fantasy burger to pawn off as if it's an accurate representation.

Re:wth

[Blue Stone]

Please mod my parent post down - as the other replies point out, events have moved on:

http://extratv.warnerbros.com/2009/10/blog_and_ralph_lauren_fight_over_skinny_model_ad.php [warnerbros.com]

"On Thursday, Polo Ralph Lauren released the following statement about the retouched ad: "For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."

Re:Too open for abuse...

[bcrowell]

Publishers are often extremely careless about sending out scattershot DMCA notices. For example, I'm the author of a free and open-source calculus textbook. My book is available on my own web site, and also on some other sites such as lulu and scribd. I got an email today from one of the folks at scribd saying they'd received the DMCA takedown notice below. The takedown notice is so vague and sloppy that it's hard to tell what they're even claiming. Are they claiming that scribd is violating my (Ben Crowell's) copyright? If so, then what business of it is theirs? (Macmillan isn't my publisher, and I've never heard of Attributor, Inc., until today.) Or are they claiming that my book contains content that infringes Macmillan's copyrights? (It would seem not, since they list "Original Work: Calculus," as if it's the entire book whose copyright is being infringed.)

---------- Forwarded message ----------
From: <[e-mail]>
Date: Wed, Oct 7, 2009 at 6:14 PM
Subject: Unauthorized Use of Macmillan Publishers Material
To: [e-mail]

*** Sent via Email - DMCA Notice of Copyright Infringement ***

Dear Sir/Madam,

I certify under penalty of perjury, that I am an agent authorized to act on
behalf of the owner of the intellectual property rights and that the
information contained in this notice is accurate.

I have a good faith belief that the page or material listed below is not
authorized by law for use by the individual(s) associated with the
identified page listed below or their agents and therefore infringes the
copyright owner's rights.

I HEREBY DEMAND THAT YOU ACT EXPEDITIOUSLY TO REMOVE OR DISABLE ACCESS TO
THE PAGE OR MATERIAL CLAIMED TO BE INFRINGING.

This notice is sent pursuant to the Digital Millennium Copyright Act (DMCA),
the European Union's Directive on the Harmonisation of Certain Aspects of
Copyright and Related Rights in the Information Society (2001/29/EC), and/or
other laws and regulations relevant in European Union member states or other
jurisdictions.

My contact information is as follows:

Organization name: Attributor Corporation As Agent for Macmillan Publishers
Email: [e-mail]
Phone: [phone]
Mailing address:
Attributor, Inc.
1775 Woodside Road, Ste 100
Redwood City, CA 94061

*** INFRINGING PAGE OR MATERIAL ***
Infringing page/material that I demand be disabled or removed in
consideration of the above:

Original Work: Calculus
Infringing URL:
http://www.scribd.com/doc/10559480/pdf-mathematics-calculus-volume-1
Infringing URL: http://scribd.com/doc/240367/calculus-by-benjamin-crowell

My electronic signature follows:
Sincerely,
Attributor, Inc.
/s

Re:Too open for abuse...

[DragonWriter]

The problem is, the DMCA does not allow you to dispute the takedown notice until after the "infringing" material has been removed.

This is not true. The DMCA sets no limits on when you can dispute a takedown notice. It just doesn't require the service provider to notify the user until after (though "promptly" after) the material has been taken down, in order to remain in the safe harbor against liability to the user. Provided that it didn't interfer with the providers ability to "expeditiously" disable access to the material, a provider could remain within the safe harbor provision while notifying users before disabling access, particularly if they happened to be able to notify them in real time.

Since the DMCA allows electronic signatures on coutnernotice, if they had an online, standard counternotice form as well, it might even be possible for them to provide a very brief window in which it was possible to file the counternotice before the access was disabled without falling outside of the requirements of either safe harbor provision.

OTOH, providers are concerned about being sued by media companies, with whom they have no contracts limiting their liabilities, and not so much by their users, with whom they usually have contracts which are set up to restrict liability. So they are much more concerned with the safe harbor with respect to complaining potential copyright holders than anything else with regard to the DMCA takedown provisions.

Re:Well, not really...

[DJRumpy]

If you read a bit farther, it appears that the ISP did cave and remove the image.

"Update: Looks like Photoshop Disaster's ISP caved to a similar notice.

DMCA Infringement Notification

Update:: Ralph Lauren accepts responsibility for the dodgy 'shop, but no word on its DMCA takedown."

Re:Well, not really...

[Demolition]

If you read a bit farther, it appears that the ISP did cave and remove the image.

Just to clarify... Boing Boing's ISP is Priority Colo. They did not cave.

On the other hand, Photoshop Disaster's ISP, Blogspot, did cave in to the DMCA takedown notice. Needlessly, as it turned out.