Wednesday, August 19, 2009

Obama Flickr Photo: Free Speech, Censorship, or Copyright Infringement?

Here's an interesting case of regulating internet content.

A 20-year-old college student named Firas Alkhateeb uploaded this photo to his Flickr account depicting President Obama in face paint designed to make him look like the Joker from the most recent Batman movie.

The photo is obviously politically charged, and, to some, racially derogatory as well. Alkhateeb defended the photo arguing that it is a parody of the iconic "HOPE" posters that became popular during last year's campaign. As this RWW article describes, "Regardless of which side you favor, one thing can be said about this photo: it definitely grabs your attention."

Well, Flickr decided to remove the photo. At first glance, one would assume Flickr's removal is a case of free speech vs. censorship, however what's interesting is that their official justification for doing so was copyright infringement. Basically, Flickr is arguing that because the photo uses Time Magazine's logo, it infringes on their copyright and thus can be removed as part of their Terms of Service agreement.

Political commentary and parody are both covered by the Fair Use doctrine of copyright law, therefore, the content of the photo ought to be considered acceptable on those terms. And as far as copyright is concerned, Time Magazine might not be thrilled to be associated with the image, but a legal claim of infringement would be hard to get credibility in court due to their logo's prominence in public view.

Regardless of what you think of the photo itself, which is certainly inflammatory and instigative at the very least, Flickr's decision to remove it doesn't seem justified based on either the free speech/censorship or copyright infringement arguments.

If they want to come across as not so intellectually dishonest, they'll need to come up with something better.
  

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