What Do We Know?

If you haven't been following the developments in this case closely, here is a quick recap: Firas Alkhateeb, a 20-year-old student in Chicago, created an image that showed President Obama wearing the makeup of the Joker from the last Batman movie. To do so, he used an image of Obama that appeared on the cover of Time magazine on October 23, 2006. According to the LA Times, he uploaded this picture to Flickr on January 18, 2009. By August, someone added the word "socialism" underneath the picture, and it was widely circulated among political bloggers and also started to appear on posters at political rallies.

So far, so good. Even if you don't agree with the politics behind this picture, this is what the online mashup culture is all about. By the middle of August, however, Flickr received a DMCA take-down notice, claiming that the image infringed on somebody's copyright. Complying with the law, Flickr deleted the image from Alkhateeb's account. The problem, however, is that Flickr never shared who actually initiated the take-down notice.

Fake Take-Down Notices on Flickr: They Work

It is starting to become clear now that the take-down notice that Flickr and Alkhateeb received was completely bogus. According to Thomas Hawk, it didn't even feature the name of anyone who owned the copyright to any part of the image. PDN has verified that neither Time magazine, nor DC Comics, nor the photographer who took the Time magazine cover image filed this claim. These are the parties that could potentially claim that their copyright was violated by this image, even though, because this is a parody, their legal claims would be on shaky ground. Instead, the name on the document, according to Hawk, is "bogus."

To make matters worse, Flickr user 3e actually verified that Flickr really doesn't check the names on these notices. 3e just submitted a claim to take down one of his own pictures with a "once-off email address, using the name 'Joe Blow' and giving no identifying information other than an obviously fake address ("Anytown, USA")." Flickr happily obliged and 3e's photo was gone within hours.

If you don't like a picture on Flickr for any reason, you can just have it deleted by sending a DMCA take-down notice. We can only hope that Flickr will institute a better verification process in the near future.

As of now, Flickr doesn't even have the capability to restore an image after it has been deleted. YouTube, which probably has to deal with far more DMCA take-down notices every day than Flickr, at least offers users a recourse to have videos restored if the copyright claim can't be verified.