Joined July 2007

Bernd Talasch doesn’t remember being hatched in a research laboratory in Omaha in the late 1950s so maybe that never happened....

If It's Not Even For Sale or Distribution, How Does It Breach DMCA?

Dear Redbubble. I get the fact that, like the guys who issue parking fines or inspect tickets on trains, you feel that you are making the world a better place and protecting me/ us all from the horrors and chaos of a world without laws.

However, while we might all agree that parking and train ticket inspectors are the true godlike heroes of our age, because when they catch offenders they can cite precisely what section, subsection and sub-section of law that has been transgressed against…… you guys simply vaguely point at the legal equivalent of Wikipedia and say ’it’s in there somewhere’ when you take a work off your site for copyright infringement under the Digital Millennium Copyright Act (DMCA).

Parking infringement people have to dress up in weird fluoro vests and leave behind conspicuous clues in colourful envelopes to tell you precisely what you’ve done wrong, while, you get to enjoy what I assume are your comfortable and stylish virtual uniforms and your shiny virtual black boots, twirling your virtual batons while working for your evil corporate overlords, just following orders….. in a world where you don’t leave a ticket on a windshield, you simply remove the car and leave no sign it was ever there, and when people track you down to ask what the hell happened, you enact your right to say little more about it than “DMCA” and what amounts to ‘you can find out about it on google or wikipedia’.

Yeah, I believe that Guantanamo Bay operates under similar principles, ie. We Win Because We’re Tougher Than You And We Don’t Have To Answer To You.

Photo of Lady Gaga at V-Festival 2009. Removed from Redbubble in 2012. Yes, I’d naively put it up for sale at the time. Number sold : zero. You’re probably thinking “Dude, it was a concert – you can’t put those photos up”. Yeah, well, they allow cameras in. Including SLRs. So if they let them in, I can take photos, no?

So here’s the deal. After my latest bout with Redbubble, who were acting once again on behalf and at the behest of a company called Bravado International who owns the rights to merchandise The Rolling Stones, Lady Gaga, the Killers and who knows who else, I’m posting my photos again, in the vain hope that when they are no doubt removed again, I will perhaps learn WHY this time, since nobody here feels capable or willing to articulate to me why. Even though:

1. I took these photos.
2. They are not for sale – I am not making commercial gain
3. They are at least in part for editorial use – for example right now I’m using them to make a point about how shitty the people who purport to enforce the Digital Millennium Copyright Act are in upholding and policing or even articulating the law they wield with such stylish awesomeness
4. I don’t believe I’m stepping on anybody’s publicity rights – the photos will not even be tagged with the performers’ names.
5. The larger images outside of this journal (and in this journal I invoke Editorial Use) can’t be right-clicked to download them due to the impenetrably clear .gif of doom, and the larger versions have a watermark, so it’s not like I’m sharing somebody else’s copyrighted work on the internet either. Although I’d also refer point 1 above. They’re MY copyrighted works.

Will that be enough? Who knows! That’s the joy of DMCA. It’s like an M Night Shyamalan movie. You know there’s a twist, but have no idea whether it’ll be satisfying or not, except historically, recently, it has not been.

The Killers in concert, taken at V-Festival 2009. Also removed years later from Redbubble in 2012. Like with the Lady Gaga shot, I was so confused by Redbubble’s illegible DMCA takedown notice that I responded saying “but… but… you were allowed to take photos at the concert!” Redbubble did little to assist me in understanding why this was not a good enough justification. Lesson learned? None, actually.

Legal scholars have argued that laws, in order to be effective, should be clear, and make sense, and be predictably enforced so that people’s actions are not needlessly criminalised without their knowledge. It’s a pity that neither Redbubble nor Bravado subscribe to the belief of predictability and openness – shoving bags over peoples heads and dragging them into a black van is obviously easier. Also, it sends a message. Of sorts.

Ronnie Wood, photographed at the premiere of the Tom Hanks film ‘Larry Crowne’. Its removal confused me. This was taken at a public event. How and in what way was I interfering with the MERCHANDISE RIGHTS to the Rolling Stones’ interests by photographing some dude at a civilian event where photographers WERE INVITED? And could this possibly even be worth buying or putting on a poster? It wasn’t even at a concert! No help from Redbubble on this one either

So fine, maybe the five year old Somalis, or the freelance Facebook friend facial recognition software bots who trawl the internet looking for DMCA infringements (or aspiring copyright agents who are paid bounties of $20 per takedown notice) (which is a figure I’ve been told is about right) will once again rise up and flag my images as problematic, and pocket their payday winnings (you’re welcome). They’ll probably do it without even bothering to read what I’m writing about them not being for sale, being used for editorial purposes, or not explicitly stepping on publicity rights, because they’re paid money to act, not think. And Redbubble will comply with their request without questioning why because the consequences of asking are too time consuming and they’re not paid to think or ask, but merely to co-operate and follow orders. And that’s the way bureaucracy and The Law works. You should all read Niall Ferguson’s “The Great Degeneration”, by the way. It’s pretty awesome.

So, to summarise : in the past year I’ve had just under half a dozen photos removed from Redbubble for DMCA breach, and I’ve never really known why, especially after I made them not for sale. And basically I just want to know what I’m doing wrong. ie. If you’re going to charge me with a crime, have the decency to tell me specifically which one, instead of invoking “DMCA” and pointing me at counter-notices that can be adjudicated in other jurisdictions if I’ve got the balls to try my hand against real lawyers to fight a breach that I haven’t been given enough information to understand. let alone contest. Thanks for that.

Now we have Mick Jagger at the premiere of the Rolling Stones’ own ‘Crossfire Hurricane’. This time I’d at least become conversant in the idea of publicity rights so I deliberately elected to make this photo and another just like it NOT FOR SALE. It didn’t matter. Redbubble removed both of them anyway. WHY? DMCA. It’s like the patriot act, people. Don’t question it, or you’re clearly not a patriot.

Well, contrary to the sexiness of taking on a megaconglomerate in the state of california (and yes, I have a girl I’m trying to impress, and no she doesn’t know), I’ve contested takedown notices before, and on the rare occasions Redbubble has even deigned to follow up on them MONTHS later (typically two or three months) (and then only when I’ve sent reminders), they’ve done the equivalent of shrug their shoulders and say sorry, bro. can’t help you, while trying to convince me that they looked at the matter again. And yes, I believe that Redbubble really did bring my inquiry to a council of elders up on a mountaintop to contemplate, and in their infinite wisdom have decided that their decision still stands.

Their exact wording : “We’ve looked into this matter and can’t accommodate this request at this time.” Like… no offense, but what the hell does that even mean? That doesn’t even tell me that I’ve necessarily done anything wrong, just that their call centre could be too busy to deal with my request!

Another photo that was removed I think was this one. Muse in concert. Taken on a mobile phone. Because, yes. That’s how I intend to bring down a multibillion dollar merchandising empire : with my nokia’s camera

So I’m doing this for science, to find out what the hell kind of world we live in. And if these photos get removed again by anonymous goon squads who will not provide me with a reason why beyond “DMCA, mother****er”, then who knows, maybe I’ll be reposting them AGAIN, and this time with a giant moustaches drawn on them, invoking PARODY RIGHTS and seeing if THAT makes a difference . Because ‘Figure Out Exactly What Law You Breached By Process Of Elimination’ is clearly the way the 21st Century works. Which I don’t think is good enough, because I don’t want to live in a world where I’m supposed to put up with this kind of shitty behaviour by companies that earn money off OTHER PEOPLES’ ARTISTIC OUTPUT instead of creating their own. Which I have zero objection against, by the way and am actually quite grateful for, but makes them the last people I want judging me. I’d rather sit down and politely talk to their lawyers than (a) anonymous bounty hunters (b) scared yes-men doing their bidding.

And also because, as I’ve said, there’s this girl I’m trying to impress. And I’m not going to get the girl if I don’t set a precedent of fighting for what I think is right. Back me up, here.

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