The Story So Far

If you haven't been following the story (see our initial coverage here and here), the short summary goes like this: Chicago resident Firas Alkhateeb created an image that showed President Obama wearing the makeup of the Joker. He used an image of the President snagged from TIME magazine's October 23rd, 2006 cover. After uploading his photo to Flickr, an unknown third party doctored the image some more adding the word "socialism" beneath the picture. This doctored image started showing up plastered across cities nationwide as well as on numerous political bloggers' websites.

Flickr, after having received a DMCA take-down notice, removed the photo from Firas' account. They did this despite the fact that the image could easily be argued to fall into the grey area of "political parody" and the copyright infringement claim itself comes from a character with a questionable background himself and not, as it turns out, from TIME magazine, DC Comics, nor the photographer who took the original photo. Instead, the supposedly infringed-upon party, a Mr. Edward Przydzial, is a freelance photographer whose only proof of his claim comes from a LiveJournal post dated Oct. 9th. Blog posts are easy to backdate which makes the claim questionable in the eyes of the law.

To make matters worse, the case highlighted a problem with Flickr's takedown policy which appears to be "delete first, ask questions later."

Flickr User Suggests a Policy Change, Flickr Agrees

While for the most part Flickr is standing behind their actions, saying that the law leaves them no choice but to remove images upon receipt of a takedown notice, they have been open to discussion about better ways to comply with the letter of the law without impacting the Flickr community so much as before.

In a forum posting on the photo-sharing site, a Flickr user by the name of "The Searcher" debating the company's DCMA policy, offered the company a suggestion. Instead of simply deleting the photo page in its entirety, the company should just replace the image itself with a blank that reads "this image has been removed for copyright issues," wrote the user. Flickr's director of community Heather Champ replied saying she liked the idea and would push it up the food chain. And that she did.

According to her follow up post, Flickr decided to make a change to the way they handle takedown notices and, going forward, they will no longer delete the entire photo page, just the image itself. A screenshot of how this will look is posted here and, as suggested, it will feature text that reads: "This image has been removed due to a claim of copyright infringement."

As Champ explains, this notable change will preserve the photo's metadata while still complying with the law. Other policies remain the same. For example, members will still be warned, by way a private message, who is making the claim against them. Flickr will remove the image from the site and will store it so that it can be replaced in the event that the U.S. Copyright Team gives them the go-ahead to do so. Now, however, the existing title, description, comments, tags, notes, etc. on the original photo page will remain available and the photo can still be added to sets and groups. Champ says Flickr will also be reaching out to the copyright teams in other parts of the world to see if they're interested in enacting the same policy. (The current policy is specific to the U.S. where the DMCA law is enforced.)

Overall, the community received the news positively, even though it still allows Flickr to eschew any responsibility of investigating the validity of DMCA copyright claims themselves. The company will continue to delete away no matter who asks, it seems - a move that drew ire from Techcrunch's Michael Arrington who said they should have checked with their lawyers first before yanking the image. Photographer and rival service Zooomr exec Thomas Hawk also questioned whether the removal was simply sheer incompetence on Flickr's part.

Ultimately, the change is a good one. It's better for the online community and the photographer whose image is removed, while still respecting the rights of the supposed copyright victim. However, the real problem here may not be how Flickr deals with copyright claims, but the DMCA law itself.