Update: Change is still waiting

Sonoran Alliance received a threatening letter regarding a post by “Josey” way back on Sunday, November 18, 2007. Although the letter is confidential and we cannot share the exact details with you, we would like to hear from our attorney readers as to the legal nature of citing the image of the blue dog of artist George Rodrigue even as a news report. As you can see, we have cropped the image of the orginal post at the request of Mr. Rodrigue.


Comments

  1. She’s a public figure. Fair game. No attorney would give legal advice in a blog comment, but if I were you, I’d just ignore it. As a Giffords supporter, I can’t imagine that anything on the blog is actionable. Again, I’m not giving legal advice, but the threat of legal action seems utterly ludicrous.

    For one thing, a member of Congress on a public issue would have to reach the New York Times v. Sullivan threshhold of “actual malice” (a term of art) – which is extremly hard to prove.

    Most attorneys advise business clients not to pursue online defamation claims against posters or bloggers who write about their products in a negative way – for the simple reasons that not only are such charges hard to prove under modern defamation law, they mostly give more publicity to the charges made against them, rather than just leave up a post which will soon be forgotten in the wealth of material posted online every day.

    And while I have no idea if your article contained only true comments, remember that the truth is always an affirmative defense that will succeed in a defamation action.

  2. Ah, I’ve actually read your post carefully and see that I went to the post assuming it was a defamation action. (I have defamation on my mind this morning because I am working on a matter regarding online defamation for someone.)

    And as a writer, I usually look at words, not pictures. Still, that was pretty stupid of me. Okay, this is not defamation.

    It’s a copyright matter. Or perhaps a Lanham Act matter (trademark), if the artist has trademarked the image.

    The artist does have the right to copyright. That includes a whole bundle of rights, including preventing others from using the image (or words or music) without his permission.

    The digital age, of course, has made many of us copyright violators. I have posted images from others’ websites from Google; most are not artists. Other people have posted images I’ve put up there (for example, a photograph I took of Nelson Rockefeller at the first Earth Day in 1970). Most people don’t care or don’t notice.

    Without doing research, I do remember that this “blue dog” image is unrelated to the political context, and I think I recall that even in a nonpolitical context, other people (artists or not) were using this image, altering it, and the artist sued.

    There is something called “fair use,” which will permit using a copyrighted work if it is transformed in some way; for example, my onetime colleague Bruce Rogow won a Supreme Court case involving a parody of Roy Orbison’s “Pretty Woman” as “Hairy Woman” by the rappers 2 Live Crew. The Court judged the material to be transformative.

    It doesn’t appear that you were commenting on the image at all. It also may be that you were placing the image in a false light. If the artist is well-associated with the image, or even not, he probably doesn’t want to be associated with the Blue Dog Democrats. He may be (or may want his blue dog to be) nonpolitical, or a Republican, or a liberal Democrat, for example.

    Where did you get the image from? If you’re like me or other bloggers, you might have done a Google Image search. But just because you or I can download the image and then upload it doesn’t mean you aren’t violating the artists’ copyright acts.

    The Constitution protects intellectual property for a reason given in the clause empowering the Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    That’s to further free enterprise and business, as well as intellectual activity, so as free-market conservatives, you can probably understand it. It’s preserved “for limited times” (which keep getting longer as Congress keeps extending copyrights – when I started publishing my first stories in 1975, it was only 28 years with a renewal for 28 years; now it is 70 years after the creator’s death) so that one person/entity can’t hold back progress and innovation by other artists or business people.

    It’s very rare that anyone would protest. I’ve had it happen a couple of times with my blog. I have immediately taken down the offending photo. Why bother with the trouble?

    The New York Times this week had an article on why Wikipedia photos of famous people are either nonexistent or poor images. It’s due to copyright law. Wikipedia, of course, must be very careful since everyone reads it.

    I can’t offer legal advice, but I think I remember that this particular artist is litigious. If it were me, I’d replace the image with another one that is similar but not copyrighted.

  3. I’ve looked for info on why the Blue Dog Democrats are called that and found conflicting answers:

    “The 51 conservative and moderate Democrats in the group hail from every region of the country, although the group acknowledges some southern ancestry which accounts for the group’s nickname. Taken from the South’s longtime description of a party loyalist as one who would vote for a yellow dog if it were on the ballot as a Democrat, the “Blue Dog” moniker was taken by members of The Coalition because their moderate-to-conservative-views had been “choked blue” by their party in the years leading up to the 1994 election.”

    “Two congressmen from that state hosted several regular meetings of Democrats who supported Reagan tax cuts and other conservative initiatives. Both offices had pictures with the blue dog created by George Rodrique. The blue dog then became this group’s chosen symbol as counterpoint to the age old Southern Democratic symbol of a yellow dog. It says quite a bit about the original group and possibly this bloc that one of the leaders of the Blue Dogs was Billy Tauzin.”

    Obviously the name “blue dog” is generic. But the work of art is not. The image belongs to the artist.

    Now, the question is: Is the image you’ve created something created by the artist? I’d assumed so, but now I’ve looked at his blue dog paintings. They don’t look like the image on your blog: http://images.google.com/images?sourceid=navclient&rlz=1T4GGLL_enUS307US307&q=%22george%20rodrigue%22%20%22blue%20dog%22&um=1&ie=UTF-8&sa=N&hl=en&tab=wi

    They have filled-in features: yellow irises, black pupils, snout, mouth, etc. They are not all blue, the middle of the face is white. Your image just seems like an outline of a generic blue dog.

    That makes a big difference, in my opinion, altering what I said in the last comment.
    The crucial question I’d ask you is where you got the image from. The artist, again in my opinion, cannot own the concept of a blue dog. Your image thus seems independent of his and would not be associated with it. He may be overreaching here.

    Other attorneys more familiar with intellectual property law related to visual art. It’s an interesting question, actually, and (thinking like a professor), it would make a good law school exam question.

    And as I always tell students, the right answer to any question on a law school exam is “It depends.”

  4. Hi Richard,

    A representative of George Rodrigue contacted us about the image that was actually scanned off a mailer that was sent out by the Giffords campaign. As you can see from the image above we actually cut it out.

    The first issue we wonder about is whether or not it is a copyright violation to report on the original use by the Giffords campaign. What if a person was holding the mailer in their hands and was photographed? If the Arizona Daily Star took a photo of the image as a news story, would that violate the copyright?

    The next issue is how much altering of the image is required in order to use it in a news report/blog post without infringement? Does a cutout edit (as seen above) qualify for use or citation?

    Finally, if credit is given to the author (without receiving authorization) does that qualify for use?

    All bloggers should really become informed in this area given the technology and access to images on search engines like Google.

    Thanks for your input – extremely helpful!

  5. Have you ever heard of a single instance, EVER, where a blog was successfully prosecuted for using an image? They haven’t even pulled it off for doctored images of sexually explicit material with the heads replaced.

    You aren’t selling another’s material or damaging another’s livelihood. Said artist is not going to lose sales of his doggie paintings because SA blogged about a Giffords flyer.

    My understanding is that the artist did bitch to the G office. The resolution was a simple agreement not to use the image again. That the artist would bother your blog about such an old post is really bizarre. If I put on my tin foil hat, I’d say this whole thing was fabricated.

    That said, that the artist was uptight enough to complain to Giffords lends credibility to his contacting you. It appears this guy is downright persnickety about anyone posting his doggies.

    If I were an artist, I would love for blogs to post my images, the more the merrier. I think it would promote interest in buying the professional grade product from the original artist.

  6. Tucson Vice says

    This is not a news site. YOu do not write, contribute or report the news. You folks, as well as any even minded reader of this BLOG (not news site,) know that you print at least as many falsehoods and inaccuracies as you do truths.

    Don’t kid yourself. It’s pathetic.

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