August 26, 2004


Desert Cat reports that some in the Kerry camp are threatening to sue anyone who posts this:


It is, of course, the cover of Kerry's book. It's also a parody of this picture, of Marines raising the American flag at Iwo Jima:


Won't Kerry be a busy boy?—he'll have to file suit against the entire internet.

UPDATE: Here's the skinny on the threatened lawsuit.

UPDATE 2: Bill gives you access to the rest of the book. (Via Protein Wisdom.)

Posted by Attila at August 26, 2004 11:53 PM

I wish I could find the source of that story (lost it somewhere) so I didn't have to say "rumor has it".

He'll have his hands full, no doubt.

Posted by: Desert Cat at August 27, 2004 07:53 AM

How do you think he's going to feel about someone posting the entire text as pdf files?

Posted by: Stephen Macklin at August 27, 2004 01:29 PM

Like Michael Moore, probably pretty good if the message gets across.

Hey, download the pdfs and read the darn things!

Ooops, sorry, Bushies don't read...

Posted by: littlemrmahatma at August 27, 2004 03:10 PM

If he was all that interested in getting this message out he would have allowed the book reprinted.

Posted by: Stephen Macklin at August 27, 2004 03:23 PM

I'm not a copyright lawyer, but if this isn't a clear-cut example of fair use, I don't know what is.

Posted by: Xrlq at August 27, 2004 03:58 PM

Little mahatma boy, you're a pathetic little snipe, aren't you?

Posted by: Desert Cat at August 27, 2004 05:25 PM

Hey! No personal attacks!

(Mr. M gets a special allowance for snarky remarks, though he needs to confine his barbs to me, rather than extend them by implication to any of my readers. Besides, I know that he knows some Bush supporters read--and write--just as well as he programs computers. Though no one on God's green earth can spell as well as he can.)

Now let's keep it civil, here. If a real troll shows up, you can let 'em have it.

Posted by: Attila Girl at August 27, 2004 06:40 PM

My apologies. Claws resheathed.

Though I'm surprised, as this is the first time I've seen a site owner protect an (apparent) troll from other readers...**confused**

I'm glad I didn't say everything I had a mind to...

Posted by: Desert Cat at August 27, 2004 09:16 PM

Thank you for being a gentleman, DC. I've now attempted to clarify my commenting policy on a separate post.

Posted by: Attila Girl at August 28, 2004 01:07 AM

Does anyone know who owns the copyright to the book?

Posted by: Interested-Participant at August 28, 2004 11:53 AM

My understanding is that it was Kerry's decision not to re-issue the book, so I guess I had the impression that he controlled the rights to it.

The issue with the cover is separate, because supposedly the photo is copyrighted separately by the photographer. But I'm having trouble seeing how an image of a book cover can be anything but "fair use." Of course, in this particular case (my case), it's that and more--it's political speech.

Posted by: Attila Girl at August 28, 2004 12:24 PM

Bushies do read. This one reads, on lline, the 9-11 Commission report, the Senate select committee on intelligence report, the Congressional Budget Office Report on the effects of the tax cuts, the DoD reports on abuse of prosoners and detainees, to name a few. What has struck me has been the astonishing discontinuity between what those documents actually said, and what conclusions were drawn from them by NPR, the New York Times, Washington Post, et al. I am a recovering Democrat, who broke free in response to the dishonesty of my (former) party after the 2000 elections. They demanded more recounts in four counties in Florida, counties run by Democrats,because these Democrats, who were the election officials had (allegedly) turned away Black voters. Even if Dems did turn away Blacks (who voted in record numbers BTW), recounts of ballots actually cast would not right that wrong. I've been a Democrat election official myself, and while space does not permit me to elaborate, I learned enough about the details of administring elections to know that what they were saying could not possibly have been true.

Posted by: Michael Adams at August 28, 2004 04:40 PM

As an "outlaw" copyright lawyer(i.e., one who devotes his time to defending unauthorized use of material and who wants to completely overhaul and reform the current system of intellectual property from the top down), I can speak to the issue a bit (though obviously one doesn't need to be a lawyer to have an opinion on what the law should be.).

Although lawyers would like to tell you that there is an "objective" 4 part test to determine if something is fair use, in fact the 4 part test is entirely flexible and is often twisted and used simply to justify an pre-determined conclusion that a judge has already made.

I’ll give you an example. The 4-part test considers the following non-exclusive factors:
1. The purpose and character of the use of the copyrighted material (i.e., for profit vs. non-profit or educational use);
2. The nature of the copyrighted work itself (i.e., a newspaper item vs. a mega-budget film);
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Here is an example of just how flexible this can be. Let’s say that my Sunday newspaper is 100 pages long (not an atypical length for a Sunday edition in a large city). Let’s say that I make a full copy of a single article that comprises one half of one page of that newspaper. If the court wants to find copyright infringement, it will say that I copied 100% of the work since it will consider the individual article to be a complete copyrighted work apart from the newspaper as a whole. The newspaper would simply be considered a “collective” work consisting of many individual pieces, each with their own copyright protection.

If, on the other hand, the court wants to find fair use, it will simply say that the newspaper as a whole is the work that it will judge by, and I have only copied one-half of one-percent of the work, thus allowing part 3 of the test to weigh in favor of fair use.

You see how this game is played? The cover photo for “New Soldier” is “both” a complete work that had been copied in its entirety by you as well as part of a “collective” work of a book entitled “New Soldier” that the photo is just one small piece of.

Each of the four parts of the test are equally as slippery, and then the courts don’t even consider such tests to be the exclusive criteria since they look at other “equitable considerations”. Sometimes the courts will weigh part 4 of the test more heavily than the others. Sometimes they won’t. The test doesn’t provide any objective criteria at all. It merely provides objective sounding rhetoric that allows courts to justify any personal policy decision that they come up with.

Since the fair use test is flexible, it is always impossible to say for sure if something is fair use or not until the issue has been litigated and a judge makes a ruling on the matter. Since litigation costs both time and money, this “flexibility” of the fair use test actually ends up chilling a great deal of speech by those who wish to avoid lawsuits. Even if they are confident that they would prevail in a ruling, it is the process of litigation itself that chills speech. That is why the current copyright scheme is so malicious.

But let’s get to the specific example here.

First, let’s address the issue of parody. The ‘New Solder’ picture does indeed seem to be a parody of the Iwo Jima picture. There is a “parody” fair use exception to copyright. But in this instance, it wouldn’t help websites that post the New Soldier photo. The parody exception only protects the photographer who made the New Soldier cover photo vis-à-vis the copyright of the man who took the Iwo Jima picture. Yes, believe it or not, the Iwo Jima photo is itself copyrighted by the man who took that photo (or whoever he assigned it to). And as a result he has rights to make “derivate” works of his photo (It’s another very lengthy post to explain why the whole concept of “derivative” works is a sham and is simply a way to get around the notion that you aren’t supposed to copyright “ideas”, only expressions of ideas. But that is another topic altogether.). The fact of the matter is, the Iwo Jima photographer now has exclusive rights to make any new photo or creative work vaguely resembling the one he took at Iwo Jima. No other photographer or artist can do this, even if no aspect of the original photo is actually used. A “derivative” work just has to take abstract elements of the original photo (i.e., composition and position of people in relation to raising a flag) in order for it to be considered a “derivative” work.

So once again, there is a “parody” exception to the exclusive rights to create derivative works. But that only protects the person creating the parody in the first place which then gets its own separate copyright. It does not mean that anyone can take the parody work on their own and use it without the parody author’s permission simply because they wish to “endorse” the parody (I’m not sure if that was the implication on this blog by pointing out the Iwo Jima parody. But I thought this still might be an informative discussion even if that wasn’t what you were getting at.)

With the fair use test being so flexible, court precedent doesn’t help much since no two cases are alike and courts can always split the finest of hairs possible in pointing out a supposed factual difference in one case versus another to reach a different conclusion.

While I share XRLQ’s opinion that your post should be considered “a clear-cut example of fair use”, the fact of the matter is that the law has been deliberately constructed in such a way that there is never any such thing as “a clear-cut example” of fair use. It is always a crap shoot at some level.

You are posting the picture in order to make a political statement of national relevance and not for profit. That should theoretically cut in your favor.

However, the copyright owner of that photo could just as easily argue that you posted the entire photo and that, in so doing, you have taken away potential market value from him/her regarding its value.

You would think that if the copyright owner had absolutely no intention of ever distributing the photo again so as to not embarrass Kerry, then the courts would disregard any discussion of market value. You would think that…but you’d be wrong.

Unfortunately, there have been many examples of courts finding copyright infringement of works even though the owners have stated that they have no intention of ever distributing them again. They have also allowed for copyright infringement for works that the author never intended to publish in the first place. So again, any discussion of the fourth prong of the fair use test is a mere charade that the courts engage in.

A few prime case examples:

Worldwide Church of God vs. Philadelphia Church of God

Salinger v. Random House

You might also want to look at a controversial Supreme Court case called Harper Row Publishers v. Nation which held against fair use even though a magazine preemptively published a mere 300 words from President Ford’s 200,000 word book that was about to be published. The passage dealt with very important political events (the pardon of President Nixon) and there was no doubt a very heavy political speech component to the reasons for the copying. However the Court still found copyright infringement.

With the test for fair use being so vague as it is applied in a practical sense, the line often gets blurred between discussions as to what I think should be fair use as a matter of personal opinion and good social policy versus what is “objectively” fair use as the courts currently see it and what the current “objective” state of the law is.

If you ask me my opinion on if it should be fair use, I’d say “Hell yes!”. If you ask me “is it fair use”, I’d say “quite possibly” or perhaps even “quite probably…but there are still some disturbing cases that you should take a look at that might suggest otherwise that would allow for a different conclusion in the hands of a talented but unscrupulous lawyer and a judge who was appointed by a Democratic President and still holds unhealthy notions of party loyolaty…”

Since there are never clear cut answers (and now even less so in the Internet age), I think its probably productive to not ask the question “Is this fair use”? Rather, you should be asking yourself, “What are the real chances of my being sued for this? And even if I get a demand letter insisting that I take it down, will I have the opportunity to decide if it is worth fighting over? Or will I likely be quickly sucked into a situation such that I will have to pay courts and lawyers money just to respond?”

Those questions will likely provide you with the real answers much more so than any questions of copyright law. (And these questions apply to your copying of the Iwo Jima photo as well since that too is likely copyrighted.)

Posted by: Justin Levine at August 29, 2004 12:14 AM


Thanks so much for your time and input.

1) The issue of the *New Soldier* cover being a parody is not relevant to the issue at hand, for the reasons you pointed out. I only wanted to state this (and to run the two images in close proximity) so that non-military (and young) people would fully understand the intent of the book cover.

2) My perception here is that I'm on much-shakier ground legally with the Iwo Jima photo than I am with the book cover, because the book cover is political speech (and because I see a book cover as a marketing piece, and different in kind than a regular photo--common sense tells me marketing pieces get distributed more).

The Iwo Jima photo is interesting in terms of your discussion of derivative material; isn't there at least one statue that depicts the raising of that flag exactly as it occurred in that shot? As a theoretical matter, one could argue that the statue represents the Marines who raised the flag, rather than their images on film in the photo. So I could see that instance going either way--though I'm sure that the photographer was simply compensated for the image.

I think the slight chance that I'll be contacted about the Kerry cover is still much greater than the chance I'll be contacted about the Iwo Jima photo, because my intent WRT the Kerry book is critical, and my intent WRT the Iwo Jima image is to support it as a revered image in military history--essentially, to defend it against a sort of visual assault.

The Harper Row v. Nation thing strikes me as a very dodgy, scary ruling. Even if the article did come out before the book did. Scary.

Posted by: Attila Girl at August 29, 2004 11:37 AM

I'll be expecting a lawyer to deliver a lawsuit to my door any day for using the cover. No word, though, on whether my posting of the entire book will be a problem.

Posted by: physics geek at August 30, 2004 02:08 PM

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