So Jeff Rowland got what could be considered a nastygram from somebody claiming to be John White, the man credited with taking the original photo of what’s now known as the O RLY owl. He’s demanding that Rowland take down some of his merchandise for including a design referencing said owl, or he’ll rat Jeff out to The Feds. To the best of my knowledge, the claimant has not been proved to be John White, but for the purposes of this this discussion, we’ll assume it is really John White.
Rowland’s LJ thread has already referenced TGTGDKCOAS¹, and that’s the line of logic I wanted to talk about. John White took the photo of the now-ubiquitous owl, and he does in fact hold both legal and moral rights to that image (we’ll leave aside the question of whether selectively asserting those rights a half-decade after the original posting has created an easement or not). We at Fleen believe strongly in creators rights, so why does this situation not make us want to side immediately with White?
Section 107 [of Title 17 of the US Code] contains a list of the various purposes for which the reproduction of a particular work may be considered â€œfair,â€? such as criticism, comment, news reporting, teaching, scholarship, and research.
It’s comment that’s most important here. Rowland isn’t just dropping the White’s photo of an owl into his design; he’s altered it and placed it in the context of a comment on internet culture (such as it is). As such, he isn’t really incorporating or referencing White’s photo at all … he’s referencing the meme of photo macros.
Let’s take an analogous situation: once upon a time there was a photo of Marilyn Monroe that Andy Warhol then transformed, which David Willis then referenced in his delightful Finger Quotin’ Margo design. The relationship to the original Monroe photo is present, but entirely abstracted by reference to the Warhol transformation, via the filter of Margo (but not Margo as owned by the syndicators of Apartment 3-G). In the same way, Rowland’s Oujia-esque desgin (woodcut look, color scheme, but not a Parker Brothers branded Ouija board by any stretch) has referenced not the original, but rather the original artistic alteration. That’s Fair Use.
And the denial of Fair Use is why White’s claim is annoying all of us at Fleen; claims like this assert that no amount of transformation can ever be sufficient, and that any resemblance is enough to trigger copyright protection. It’s the same logic that led Ira Glass to note that pancakes he witnessed were existing in violation of intellectual property laws, because Disney has made a habit of asserting ownership over every possible permutation of one large circle with two smaller, intersecting circles at the 10 o’clock and 2 o’clock positions. It’s flawed logic on the part of the Disney corporation and similarly flawed on White’s part. The O RLY owl is something different from the original photo, and comment on that cultural artifact (even on — gasp — merchandise for sale) is allowed.
¹ The Great Todd Goldman/Dave Kelly Contretemps Of Aught-Seven.