Photoshop Disaster Draws DMCA Notice For Boing Boing

Pickens writes: "Cory Doctorow writes that Ralph Lauren issued a DMCA takedown notice after Boing Boing republished the Photoshop disaster contained in a Ralph Lauren advertisement in which a model's proportions appear to have been altered to give her an impossibly skinny body with the model's head larger than her pelvis. Doctorow says that one of the things that makes their ISP Priority Colo so awesome is that they don't automatically act on DMCA takedowns and proceeded to dare Lauren to sue. 'This is classic fair use: a reproduction "for purposes such as criticism, comment, news reporting," etc,' writes Doctorow. 'Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings.' Doctorow adds that every time Lauren threatens to sue he will 'reproduce the original criticism, making damned sure that all our readers get a good, long look at it,' 'publish your spurious legal threat along with copious mockery,' and 'offer nourishing soup and sandwiches to your models.'"

Comments

kudos

[hydrolyzer]

to their ISP, all the comments on that article mean something, but its the people with at least a fair amount of money behind them (such as mid-size ISP's, in fact) that can make a real difference. Not only in hilarious copyright battles such as this, but pretty much everything. Good on them for actually making a difference

I'm grateful

[ErikTheRed]

That Boing Boing was able to get us the skinny on this.

Re:I'm grateful

[A. B3ttik]

Ralph Lauren's Legal Case is kinda thin.

Re:I'm grateful

[commodore64_love]

P.S.

The U.S. Congress should ban the use of Photoshop and other digital manipulation for photos used in advertising. In fact all they really need to do is amend the "truth in advertising" laws.

Re:I'm grateful

[SoupGuru]

Have you been discussing this on Yahoo or reddit?

I don't come to slashdot for the bleeding edge news, I come for the insightful (well, sometimes) discussion of the interesting news stories that might be a day old.

Re:I'm grateful

[vmxeo]

Ralph Lauren's response was also obviously disproportionate

Re:I'm grateful

[mcsqueak]

The U.S. Congress should ban the use of Photoshop and other digital manipulation for photos used in advertising.

I don't know how easy it would be to do. You shouldn't just have a blanket banning of Photoshop, because it can be used to reproduce a lot of valid darkroom techniques, such as color adjustments, contrast, levels, dodge and burn, etc... things that are legitimate and need to be done to most photos.

It is awful the digital manipulation like this is used, however... and it just looks flat out FAKE. You can tell when someone has been over-Photoshopped because they just look "off" somehow.

Re:I'm grateful

[MarkvW]

You couldn't ban digital manipulation of photos used in advertising.

Advertising speech gets first amendment protection, albeit not as much protection as policical speech, for example. But it does get protection.

One obvious First Amendment problem that you run into is overbreadth.

There are a lot of good uses for Photoshop in advertising--like making really cool surrealistic advertising videos, for example. Such videos are not misleading and there is no legitimate interest in regulating them. Any law that would bar their production merely because they were digitally created would violate the First Amendment.

Re:I'm grateful

[Archangel Michael]

I have an idea, how about making sure that the ORIGINAL unedited version is available upon request, with a link in the advertisement to the source of the original.

Kind of like, Open Source for Photography?

Re:I'm grateful

[Hoi Polloi]

They are just starved for attention.

Re:I'm grateful

[Whorhay]

And if we were to ban photoshopping in advertisements what would be next, banning makeup? It's just not going to happen and if it did it wouldn't be worth the trouble. Just push for honesty in advertising in general and hope for the best.

Re:I'm grateful

[Old97]

The U.S. Congress should ban the use of Slashdot to propose unconstitutional laws.

Re:I'm grateful

[MaWeiTao]

I work in design and have done more Photoshop work than I care to recall. It certainly is an extremely useful tool and can't be banned outright, however, they could impose very clear limits on retouching photos of people.

I personally see two problems. The first is covering up imperfections, freckles, beauty marks, lumps, etc. The second is thinning out individual body parts and in some extreme cases taking the entire person and making them more narrow.

There's a big drawback here, however. This wont address the use of heavy makeup, creative lighting or photography. And movies have always used all sorts of techniques to make actors look amazing. Celebrities are sometimes virtually unrecognizable in person because of how heavily they're done up for movies. And agencies will likely push models to lose even more weight. Photoshop ultimately is one small part of the larger problem of creating very unrealistic expectations of how people should look.

I've had friends who couldn't be with a girl if she didn't have the perfect complexion and body type depicted in the media. I've also known many girls who lament how terrible they supposedly look compared to celebrities. But how the hell do you change these attitudes in a culture so addicted to celebrity culture? And it's not a problem unique to the US either. It's bad enough in Europe, and probably even worse than the US in Asia.

Re:I'm grateful

[roc97007]

Agreed, banning photoshop is nonsensical. It's not the tool, it's the use to which it is put.

This sounds like a job for the swarm. There's a lot more people out there with photoshop experience, able to spot these kinds of manipulations, than these companies could hope to pursue. Let's not leave it just to Photoshop Disaster. If a few thousand geeks pursue them relentlessly, we could see real results.

Re:I'm grateful

[mamer-retrogamer]

[Photoshop] certainly is an extremely useful tool and can't be banned outright, however, they could impose very clear limits on retouching photos of people.

Who is "they" and how would they impose these arbitrary limits on photo retouching?

The problem isn't necessarily with the advertising agencies who are trying their best to fool us that their client/product is "better" than they actually are. That's what they've always done and that is what they will continue to do.

The problem is with the increasing number of people in our society who lack critical thinking skills and don't question what is presented to them.

What's nefarious about this particular DMCA take down notice is that its only purpose is to squelch critical opinion on advertising techniques. (It is also just another example of how the DMCA has little to do with copyright protection and is more about handing over control of our culture to the media companies).

Re:I'm grateful

[mcsqueak]

I worked in a Print Shop for several years. Don't give me any of that dark room crap please.

Good for you. My late father owned his own commercial photo studio and print lab for about 23 years, in which I spent a great deal of time. I have also shot photography professionally, so I know good and well about "darkroom crap" as well as clever tricks that can be pulled off during the photo shoot itself, without any after-manipulation.

Here is how I see it: yes, it's gross and dishonest when advertisers try and use these tricks to pull a fast one on consumers. However, I think the problem is that we need to redefine what a photograph is.

Only in print journalist (and not even there sometimes) is a photograph a literal slice of a moment in time. Most every other photograph needs to not be look upon as literal truth, but as an idealized version of reality.

Think of all those photos of friends and family smiling, posing for a photograph. Is that how life is all the time? No, it's a posed photo, an idealized version of that point in time. I personally see photography much the same way, and try not to take it personally when a hamburger in an ad looks different than the one on my plate. It's fucked up, but that's how it is, in my view.

Re:I'm grateful

[mattack2]

or, hey, a bar code you can swipe with a cat-shaped thing, and make another company go bankrupt!

Re:I'm grateful

[interkin3tic]

It is awful the digital manipulation like this is used, however... and it just looks flat out FAKE. You can tell when someone has been over-Photoshopped because they just look "off" somehow.

It is pretty sickening that Madison avenue has so distorted our view of how women should look that they're starting to move INTO the uncanny valley.

It is kind of sad to think

[rimugu]

It is kind of sad to think that some people will think she looks perfectly normal. Event though they have never seen someone like that, just other adds, tv, etc.

Re:It is kind of sad to think

[mcgrew]

Although it's typical for thin women to have little cleavage, sometimes you see the rare thin woman with large breasts.

I know a woman like that, and hers are silicone. Hint to any young females out there who are thinking about breast augmentation -- silicone gets hard as it ages. When you hit forty, your tits will be hard as rocks. Hers are.

Too open for abuse...

[MikeRT]

The DMCA needs to be updated to have two points in it:
1) Filing a claim that isn't supported by copyright law is fraudulent under the good faith premise of the filing process
2) No guilty intent on the part of the filer is necessary for it to be civilly or criminally actionable.

If you're some dumbass who files a report that is incompatible with the law, without knowing what the law says, no matter how right you thought you were, you should be guilty.

This is one of the few areas where my instinct says that a guilty mind should not be necessary at all to punish someone.

Re:Too open for abuse...

[bcrowell]

Publishers are often extremely careless about sending out scattershot DMCA notices. For example, I'm the author of a free and open-source calculus textbook. My book is available on my own web site, and also on some other sites such as lulu and scribd. I got an email today from one of the folks at scribd saying they'd received the DMCA takedown notice below. The takedown notice is so vague and sloppy that it's hard to tell what they're even claiming. Are they claiming that scribd is violating my (Ben Crowell's) copyright? If so, then what business of it is theirs? (Macmillan isn't my publisher, and I've never heard of Attributor, Inc., until today.) Or are they claiming that my book contains content that infringes Macmillan's copyrights? (It would seem not, since they list "Original Work: Calculus," as if it's the entire book whose copyright is being infringed.)

---------- Forwarded message ----------
From: <remediesspamproofing@attributor.com>
Date: Wed, Oct 7, 2009 at 6:14 PM
Subject: Unauthorized Use of Macmillan Publishers Material
To: copyrightspamproofing@scribd.com

*** Sent via Email - DMCA Notice of Copyright Infringement ***

Dear Sir/Madam,

I certify under penalty of perjury, that I am an agent authorized to act on
behalf of the owner of the intellectual property rights and that the
information contained in this notice is accurate.

I have a good faith belief that the page or material listed below is not
authorized by law for use by the individual(s) associated with the
identified page listed below or their agents and therefore infringes the
copyright owner's rights.

I HEREBY DEMAND THAT YOU ACT EXPEDITIOUSLY TO REMOVE OR DISABLE ACCESS TO
THE PAGE OR MATERIAL CLAIMED TO BE INFRINGING.

This notice is sent pursuant to the Digital Millennium Copyright Act (DMCA),
the European Union's Directive on the Harmonisation of Certain Aspects of
Copyright and Related Rights in the Information Society (2001/29/EC), and/or
other laws and regulations relevant in European Union member states or other
jurisdictions.

My contact information is as follows:

Organization name: Attributor Corporation As Agent for Macmillan Publishers
Email: remediesspamproofing@attributor.com
Phone: (650) 306 9474
Mailing address:
Attributor, Inc.
1775 Woodside Road, Ste 100
Redwood City, CA 94061

*** INFRINGING PAGE OR MATERIAL ***
Infringing page/material that I demand be disabled or removed in
consideration of the above:

Original Work: Calculus
Infringing URL:
http://www.scribd.com/doc/10559480/pdf-mathematics-calculus-volume-1
Infringing URL: http://scribd.com/doc/240367/calculus-by-benjamin-crowell

My electronic signature follows:
Sincerely,
Attributor, Inc.
/s

Re:Too open for abuse...

[the_womble]

You own the copyright and they are representing themselves as your agent under penalty of perjury?

It sounds like they should be in trouble. The question is who it is up to to sue them.

wth

[MorderVonAllem]

I seriously can't understand how someone could even photoshop that and go 'Well, looks like my work is done here' or the marketing guy who ok'd the final product...sheesh

Re:wth

[vorpal22]

I propose that photoshop-skinnying models is probably analogous to heavily salting food: the more you do it, the more desensitized you become to it, until you reach a point where it still seems natural to you but ridiculously overdone to everyone else.

Re:wth

[Not_Wiggins]

More up-to-date, BB has posted that Ralph Loren has admitted a "my bad," and that they promise to be more diligent about it in the future. Scroll to just above the comments.

Re:wth

[Blue Stone]

Please mod my parent post down - as the other replies point out, events have moved on:

http://extratv.warnerbros.com/2009/10/blog_and_ralph_lauren_fight_over_skinny_model_ad.php

"On Thursday, Polo Ralph Lauren released the following statement about the retouched ad: "For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately."

One of these days...

[Mr. Underbridge]

...these morons are going to figure out the whole Streisand Effect thing. Keep screwing yourselves, fellas.

IANAL, question for real lawcritter

[TiggertheMad]

One of the BB posts, noted that falsely issuing DMCA notices might be construed as abuse of process. If any real lawyers are lurking out there, could this be used as a counter tactic? What is the likely hood that you could make such a charge stick to the plantif or their counsel?

Re:IANAL, question for real lawcritter

[mpoulton]

One of the BB posts, noted that falsely issuing DMCA notices might be construed as abuse of process. If any real lawyers are lurking out there, could this be used as a counter tactic? What is the likely hood that you could make such a charge stick to the plantif or their counsel?

The DMCA itself provides for penalties, both civil and criminal, for false takedown notices - it's perjury, and probably tortious interference with a business relationship. However, this case is not so clear-cut. They reproduced the ad in its entirety, unmodified. The fact that they subsequently ridiculed it may or may not really make this fair use. Most likely it does, but arguments exist both ways. Thus, there is enough law to make the takedown notice non-perjury.

I'm confused...

[aztektum]

The ISP is in Canada? Why should they comply with a US law?

heroin chic is back?

[Trepidity]

Someone page Sir Mix-a-Lot.

fuck the law

[LordKaT]

blind obedience to words written by the social elite only keeps the populace oppressed.

Re:WTF kind of ad is that?

[dickens]

I think that if my healthy, athletic, 13yo daughter saw that picture you would get a Duane Johnson-esque eyebrow and a lifelong aversion to anything with the Ralph Lauren label.

Re:Let me be the first to say

[Attrition_cp]

s/tap/snap/ig

Another shot of the model, more realistic

[RichMan]

Found the link in a BoingBoing comment
http://www.ralphlauren.com/product/index.jsp?productId=3558821&camp=affiliate_k108283
She looks more human here.

I work where they do a lot of these photoshoots

[alen]

don't work for anything fashion related, but in the same area in NYC. i see some of the models going in and out of the building and i swear in real life it's like they are auditioning for Schindler's List 2

Re:I work where they do a lot of these photoshoots

[mewsenews]

Schindler's List 2: This time, he's checking it twice

Terrible Photoshop work

[Animats]

That's a horrible Photoshop paste job. Does that head even go with that body?

There's a wry New Yorker article about Pascal Dangin, the leading photo retoucher for the New York fashion industry. The print version of that article has before and after pictures. He's much better than whomever did that botched Ralph Lauren ad.

Dangin is much more subtle. Although he's been criticized for slimming down Madonna's arm muscles.

Re:Let me be the first to say

[nomadic]

Here she is for real.

Hey - a new Ask Slashdot idea is born!

[VoxMagis]

Yes, the DMCA is stupid.

Now, can I ask WHY people buy T-Shirts, undies, etc from big designers?

I just don't see why you would buy something for $100 from a designer label when you can buy something without a name on it for $4. I mean, the amount of marketing that has to go into this must be insane! It would be one thing if the big fancy labels used legitimate, well-paid, non-sweatshop labor to make these things, but I don't see that happening.

Re:Hey - a new Ask Slashdot idea is born!

[TheABomb]

You might as well ask why peacocks display their plumage.

Re:Hey - a new Ask Slashdot idea is born!

[Anonymous Coward]

To attract peacunts, of course.

Re:pa-ra-pum

[noundi]

In a few years, when this is forgotten, Ralphy will remember this as one of the skeletons in his closet.

While they're at it...

[denis-The-menace]

While they're at it, how about creating a "truth in News reporting" law. .. no obligation to report truthfully, and the First Amendment protects their right to lie.

http://en.wikipedia.org/wiki/Monsanto#In_USA

Re:While they're at it...

[civilizedINTENSITY]

"The court held that Fox News had no obligation to report truthfully, and the First Amendment protects their right to lie. Therefore, the court held that firing a reporter for refusing to lie is not actionable under the whistleblower statute. The story can be seen in the feature length documentary film The Corporation." The Corporation is where I first heard of this. Journalistic Ethics is becoming a contradiction in terms. Activities should be categorized as "entertainment", or "journalism", or "advertising", and obviously different legal standards need to be applied to each. An informed public being necessary to the workings of a democracy, this is beyond stupid and well into a dangerous zone. As the law currently stands, behavior approaching that of treason is not actionable. In a democracy we've really only ourselves to blame for letting this happen to us, too.

Re:pa-ra-pum

[Impy the Impiuos Imp]

I'm glad Doctorow had the spine to stand up to this. I really couldn't stomach another battle of talking heads.

It's not even as if they had to bother...

[davebooth]

According to her online profile, unphotoshopped that model is 5'8" and wears a size 6, measuring 33-24-35. No need to alter those proportions at all.

Well, not really...

[schon]

The ISP in question is Canadian.

I attended a talk by Michael Geist, where he said that 30% of Canadian ISPs comply with DMCA takedowns. This figure was presented by some pro-copyright lobby as "shocking" evidence that Canada is a lawless place where copyright isn't respected.

Geist agreed that it was shocking - but for a different reason. He said it was shocking that 30% of our ISPs caved to a law from a foreign country, and complied with a request they had no legal requirement or authority to obey.

Re:Well, not really...

[jo42]

Some 'Canadian' ISPs, such as PEER1, are actually based out of the US.

Throws a bit of a monkey wrench into the caving in to a law from a foreign country...

Re:Well, not really...

[Demolition]

If you read a bit farther, it appears that the ISP did cave and remove the image.

Just to clarify... Boing Boing's ISP is Priority Colo. They did not cave.

On the other hand, Photoshop Disaster's ISP, Blogspot, did cave in to the DMCA takedown notice. Needlessly, as it turned out.

So what?

[Roger W Moore]

Actually DMCA takedown notice is a benign part of that act, unlike anti-circumvention provisions.

So what? It is NOT the law in Canada. We have laws guaranteeing public access to healthcare which are benign - does that mean that the US should be required to follow Canadian law? The correct response from the Canadian ISP should be to mail back an elementary school book explaining about how countries are different with a suggestion that they read it and learn something.

I would also dispute how benign it actually is because it can be used to intimidate people into taking down material that they are legally entitled to show such as the case here.

Re:So what?

[tomhudson]

Nope - culture, publishing, etc. was specifically EXEMPTED in NAFTA.

And if you want to end NAFTA, be our guest. We'd love to see the provisions that guarantee you access to our specific percentages of our water and energy lifted, now that the auto makers aren't keeping up with keeping a proportionate share of production in Canada (I'm looking at you, Ford!).

Don't forget - we're your #1 supplier of petroleum products - more than Saudi Arabia. If NAFTA goes, we can charge less for oil in our domestic markets, and grab a significant chunk of what's left of US manufacturing. And what you don't want to buy, China will be happy to take.