Slashdot Mirror
DMCA Takedown Notice For a Fake ID
TrippTDF writes "Rachel Hyman, an artist and bartender in New York City, maintains a blog where she regularly posts images of fake IDs she confiscates from would-be underage drinkers, along with a description of the confiscation. Recently, one of her posts (Google cache) was taken down when the owner of the fake ID invoked the DMCA against Blogspot. Can one claim a forged document as a copyrighted work of art?"
Yes, but when you put the picture on a fake ID, said ID (and any image of it) is not copyrighted; it's an (illegal) derivative of a state or national identification and can be posted anywhere for any reason. This just sounds like some rich asshat trying to find a sneaky way around having been caught with an illegal ID.
she did take the picture and the DMCA notice only claimed ownership of the picture in the ID and the signature. see my comment below. I helped her file the DMCA notice.
Well, you can copyright a derivative work, but that right only applies to the content that is, in fact new. Indeed, "Feist Publications v. Rural Telephone Service" held that information in a pure form (facts) cannot be copyrighted. Therefore, photo notwithstanding, a fake license cannot be copyrighted. As for the photo, it is a mug shot, which is inherently not artistic in nature, and as such, cannot be copyrighted.
Finally, Title 17, Chapter I, Section 113 pretty much takes the wind out of their sails:
(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
Note: producing the fake ID was done lawfully; that is, the owner of the copyright of the photo gave permission in a legal way for it to be used in the production of the product (the fake ID) which was later offered for sale. What is unlawful is to pass the fake ID, and probably to sell it. There's nothing illegal about producing the article.
So no, that argument probably doesn't pass muster.
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First, yes, she is liable. Affirmative defenses are justifications, not blame-removers. I dunno about you, but I'd rather be blameless to start, and not rely on trying to prove a safety net. And, about that safety net, you also have: 7. (a) In any proceeding pursuant to subdivision one of section
sixty-five of this article, it shall be an affirmative defense that such
person had produced a driver's license or non-driver identification card
apparently issued by a governmental entity, successfully completed the
transaction scan , and that the alcoholic beverage had been sold,
delivered or given to such person in reasonable reliance upon such
identification and transaction scan. Emphasis mine. In other words, the defense applies only if she scans the mag strip on the ID, not just looks at it. I can imagine that not everyone has a strip reader dedicated to carding teens, can't you? So, yes, she would be liable, even if you don't like her attitude.