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Using Copyright to Suppress Criticism?

Most artists don’t like to be criticized. Is it going too far to use the tools of copyright to suppress criticism of one’s art? That’s the discussion going around about comics artist Randy Queen and his use of Digital Millennium Copyright Act (DMCA) takedown notices against Escher Girls, a blog that challenged Queen’s depictions of female anatomy.

Randy Queen is best known as the creator of Darkchylde. It’s not in dispute that Queen is one of many comics artists to exaggerate and distort female (and male) anatomy in his art.

Escher Girls is a blog hosted on Tumblr. Its creator and administrator goes by Ami Angelwings. Escher Girls lays out its mission at the top of its homepage:

This is a blog to archive and showcase the prevalence of certain ways women are depicted in illustrated pop media, specifically how women are posed, drawn, distorted, and/or sexualized out of context, often in ridiculous, impossible or disturbing ways that sacrifice storytelling.

Escher Girls posted several examples of Queen’s art in a critical context.

Under the DMCA, an online service provider (such as Tumblr) has a “safe harbor” against claims of copyright liability if they block access to material that allegedly infringes a copyright upon receipt of notification of an infringement claim. Queen filed DMCA notices with Tumblr, and Tumblr removed Escher Girls’ posts.

There has been quite a bit of back and forth about this – Escher Girls posted about the situation, Queen sent several emails to Angelwings threatening further legal action, she posted again, and so on. As of this writing, her most recent post and summary about the issue can be found here.

In one of Queen’s emails, he stated:

Let’s say I take someone’s old copyrighted photography and ‘corrected’ it for them, as well as posted disparaging comments to circulate along with what may be someone’s first exposure to the work. Guess what? I don’t have the right to do that, it’s not my content.

Guess what? You just might have a right to do that on the grounds that such use of another’s content is fair use. Now, fair use is a tricky doctrine, as my regular readers know. I created a slideshow just to give a general overview of the topic – you can see it here: What is Fair Use?

As a review, Section 107 of the U.S. Copryight Act lists four factors to be considered when determining whether a copyright infringement is entitled to a fair use defense:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Rather than dutifully marching through the 4 factors, let’s just stipulate that the first factor is the most important one, the one that courts tend to weigh most heavily. While there’s no way to see the original posts (since Tumblr removed them), from the context, knowing how works are posted and discussed on Escher Girls, it’s safe to say that the use of Queen’s images was non-commercial and for the purposes of artistic criticism. That’s the whole point of her blog.

Recent cases have focused on the question of whether the use is “transformative.” The state of the law seems to be that if a court finds a work to be transformative, it’ll qualify for fair use protection. From a recent case:

Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.”

You see where this is going. The use of copyrighted works in Escher Girls is transformative at its core. The original purpose of the art was to show superpowered characters fighting each other. Escher Girls places the images in an entirely new context to illustrate gender issues in popular art. Angelwings is not republishing entire comics, but selecting those images that best make her point.

DMCA takedown notices are a blunt instrument. The intent of Congress in drafting the DMCA was not to suppress criticism, but to give artists a way to respond to honest-to-goodness copyright infringement without shutting down the Internet entirely. It’s not reasonable to ask online service providers to make judgments in real time as to whether an infringement is just that, or, instead, whether it qualifies for a fair use defense. Nor can every blogger afford the legal counsel necessary to defend their blog posts. Therefore, these kinds of actions have a chilling effect on necessary and important commentary and criticism about arts and popular culture. Congress needs to act to clarify the DMCA takedown process and put a stop to this kind of bullying.

Thanks to Kelly Mayfield for letting me know about this story.

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