Wednesday, August 25, 2010

Fair dealing/use in "doctored" photos

Feminist website Jezebel has been fighting a pretty decent fight over the use of Photoshop in magazines and advertising. They've called out Lucky Magazine, Nordstrom, Ralph Lauren and others, and even received an apology from Ann Taylor for its over-zealous use of the liquify tool.


At least, that's what I think Jezebel has been doing - I can hardly bring myself to read the posts lest my eyes fall on the comments section. It's one thing to point out that Photoshop creates unrealistic expectations about what women look like; it's another to hear rants about whether photos of thin celebrities should carry health warnings (true story).


Yesterday it published these  photos of Jennifer Aniston:


claiming that they're examples of "before and after" Photoshop.


The first photo had not been published previously, and the photographer's agent's lawyer got on it pretty quickly with a cease and desist letter (published here). The author of the post (and, eventually, the owner of Gawker Media, Nick Denton) responded that it was "fair use" and refused.


Jezebel didn't articulate why it was fair use, but the context suggested they think it's news reportage. The problem is that the agent (along with pretty much anyone with a set of eyes) says the first photo is obviously retouched to make her look worse.

I don't think anyone's claiming that Jezebel doctored it themselves ... but can you really take misleading content, breach someone's copyright, create a scandal around the subject of the unpublished material and use the scandal itself to defend the breach of copyright allegation?


And looking at it from a different perspective, if the doctorer gets to hide behind Jezebel (as a confidential source) and Jezebel gets the benefit of the fair dealing exception because the scandal they create is newsworthy, who can provide a remedy for the photographer (or Poor Sad Jen, who will never get Brad Pitt back now he's seen her wrinkles)? 
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