Real Fair Use

I collect litigated art for the talks I give about copyright and artists rights, and, in preparation for a talk I'm giving next week, a peachy one has just crossed my desk.

I do not normally agree with Cory Doctorow about copyright issues. He's firmly in the camp of "information wants to be free" which I find at odds with his other job of being a science fiction writer. Cory was on the board of directors of the Science Fiction Writers of America when I first was hired as their attorney, so we've had some dealings over the years. He's a very smart and personable gentleman, even if I don't agree with most of the positions of the Electronic Frontier Foundation or those he propounds on Boing Boing.

This time, though, Cory and Boing Boing are absolutely in the right. They've reproduced a photograph of an impossibly thin model in a Ralph Lauren ad, which you can see here and read about on the Huffington Post. Boing Boing's been hit with a cease and desist letter from Ralph Lauren's lawyers claiming copyright infringement.

This doesn't pass the smell test, or the giggle test, as the blog pointed out. While I get a lot of queries about fair use, most of them involve situations where some schmuck wants to use work without paying for it. This is not that kind of a case. The photograph was reproduced under one of the clearest cases of fair use I've ever seen--commentary on the photograph itself. I think it was originally reproduced in Photoshop Disasters, one of the funniest blogs anywhere, especially if you work with Photoshop (as every photographer today does.)

As pointed out elsewhere, the model in the Lauren ad has a head which is bigger than her pelvis. Last time I looked, that's more than a bit out of proportion. I find her legs to be absurdly thin--rather like Laura Flynn Boyle's walking skeleton the night that David E. Kelley was honored for his legal series at the Television Academy. I could not believe that people complained about Callista Flockhart when Ms. Boyle looked like she had not 1% body fat and legs that looked like toothpicks in her leather pants. (This was my impression from my view about three feet away at the reception that night.)

The model looks awful. Kudos to Cory for pointing this out. I'll handle the case against Ralph Lauren if Cory needs it, which is not an offer I make lightly. Lauren's high powered law firm should have advised him that this is a no-win situation. (Which is what I will tell them if they bother me with one of their C&Ds now that I've had my teaching moment about litigated art.)

And someone should set up a fund to feed this girl.