Approved 2020-05-03 - Arseniy Leyman on behalf of Evelinushka: DMCA over an Avatar

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SpiralStars

kiwifarms.net
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Nov 11, 2018
Huh, one of the few valid DMCA claims and it's over a profile pic from an account that was barely active over a year ago. Why did they even care enough to strike it?
Going to go out on a limb and say as an example an identity makeover kind of like that chick who plays Poppy. Some kind of revision of history. She's marrying a Russian big shot and can't have any thing at all around to haunt her. That kind of shit.
 

Lards and Lasses

Ignore Button Enthusiast
kiwifarms.net
Joined
Apr 18, 2019
fixed it
1588557258162.png
 

Trigger Me Timbers

Reformed Kekistani
kiwifarms.net
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Aug 21, 2018
Doesn't that constitute fair use? What constitutes a proper DMCA anyway?

The profile picture doesn’t really transform the image in a meaningful way and it’s not providing any additional commentary or critique. if the username has something to do with the picture then perhaps that would be fair use (see Sargon and Akilah lolsuit)

I don’t mind Null respecting the takedown since it was properly formatted and there’s no real reason to want to keep it up.

Granted he could not respect the takedown and there would be little recourse since you can also not prove that we damaged the original intellectual property in any meaningful way.

so what if she’s managed to break the thot curse and marry some Russian oligarch? Good on you you filthy slut.
 

Captain Manning

True & Honest Fan
kiwifarms.net
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It may be properly written, but is the subject of the claim actually proper? It's a picture of an individual who has posted her picture in public, posting that in places without monetizing her image shouldn't be actionable.

Oh wow. I haven't heard that one in a long time.

Money has jack shit to do with it. That's one of those old defenses of actual copyright infringement that's as annoying as all the bullshit litany of arguments you hear nowadays that claim absolute copyright.

It got so prevalent that the FBI added it to the FBI warning ("nah fam, you're still breaking the law even if you freely copy this album/game/video/whatever for that bitch you're trying to get with.").

fbiwtf_wide.jpg

It wasn't posted here for comment, criticism, or parody, so it's probably a valid DMCA. Or, at least it is questionable and unimportant enough for Null not to care. You got to pick your battles.

Doesn't that constitute fair use? What constitutes a proper DMCA anyway?

That which doesn't withstand a fair use analysis. As this might not. See above.
 

Harvey Danger

getting tired of this whole internet thing
True & Honest Fan
kiwifarms.net
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May 16, 2019
Money has jack shit to do with it. That's one of those old defenses of actual copyright infringement that's as annoying as all the bullshit litany of arguments you hear nowadays that claim absolute copyright.
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It wasn't posted here for comment, criticism, or parody, so it's probably a valid DMCA.

The DMCA notice claims the copyrighted work is the YouTube video, and the single image of her face is infringing on that copyright. But you can't copyright your own face, that falls under personality rights. The "fixed work" would be her performing for the camera, and the performance is copyrighted, not her likeness. While she holds copyright over the video, an image is not a video; it's a different format, in a different medium. That might be transformative, which leads to the question of fair use.

Even if it wasn't posted for comment etc, it could still be allowed because fair use is actually based on a 4 part test:
  1. Purpose: The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit education purposes.
  2. Nature: The nature of the copyrighted work.
  3. Amount: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. Effect: The effect of the use upon the potential market for, or value of, the copyrighted work.
Emphasis added. Money does come into play for that factor, because monetizing it becomes commercial activity that is given less preference in the test.

Neither Null nor the user made money off the avatar picture. A basic run-through of the other 3 factors suggests it's non-infringing of her copyright, so yes, the money could be the swing factor in the analysis, which is why I mentioned it.

Or, at least it is questionable and unimportant enough for Null not to care. You got to pick your battles.

Which is fine, and I don't care that Null nuked it.

But since you got me in the argumentative asshole mood... by the same token, that pic still falls under de minimis use. It's unimportant enough for the courts not to care either, and if Null asserted this defense to a sane lawyer, they'd probably go away.

Internet shitposters assuming that it has to be comment or critique or parody to be fair use are self-limiting. There's case law going back to Betamax tapes giving you more freedom than you realize, no matter how scared that FBI warning made you.
 
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