The same day Yahoo announced its plan to buy Tumblr for $1.1 billion and pledged to treat its users with respect, they summarily terminated my account for alleged DMCA violations.
Apparently Tumblr has a two-strikes-and-you’re-out rule. At least it did in my case.
Tumblr was exceptionally swift in shutting down my three blogs, two of which were never the subject of any DMCA complaints. I received my initial notification of a DMCA complaint at 1:36 p.m. EDT today and my account was terminated less than three hours later, at 3:31 p.m. I was away from my computer and could not properly respond to the complaint until this evening.
Here’s the background on my case.
In December 2012, I started a Tumblr blog called LFL Wardrobe Malfunctions. The purpose of the blog was to draw attention to the comically non-functional uniforms worn by players in the Legends Football League, formerly called the Lingerie Football League. Players in this women’s football league routinely have their bikini tops and bottoms pulled down by tacklers.
I scanned the Web and aggregated examples of LFL wardrobe malfunctions as a journalistic endeavor for my non-commercial blog. I’d post the photos and give credit to the photographers when able and provide links back to their other photos. I acted as a curator. On all my blogs, I point users to source material, whether information or artwork whenever possible.
In February, Josh Schaefer, a sports-action and event photojournalist based in Saskatoon, a city in Saskatchewan, Canada, complained about two Canadian LFL photos that I posted. He objected to my using his photos for my educational project. I reached out to Schaefer via email, told him about my project and tried to get him to withdraw his complaint. He wanted no part of it.
The photos in question featured big logos for JoshSchaeferPhotography.com. I provided links back to his photo sets, which include scores of photos from Canadian LFL games. My two selections were but a tiny sample of his work. And they were arguably permissible under copyright law for news-gathering and educational purposes to discuss the sexist nature of the LFL.
I should have filed a counter claim then against the take-down, but I let it slide.
After educating myself about fair use under U.S. copyright law, I decided to experiment with “transformative works.” In this fair-use exemption, an original work is transformed by adding new expression or meaning. Value is added by creating new information, new aesthetics, new insights, and understandings, according to Stanford University.
I eventually took three Schaefer LFL photos cropped them for effect and added big funny text to draw attention to problems with LFL uniforms. I then posted them to my LFL Wardrobe Malfunctions blog.
Schaefer complained about my posting of these three transformative works.
His two complaints over the past four months were treated like five complaints and Tumblr compliance employees quickly terminated my account for “multiple uncontested DMCA copyright notifications.” Like I said, I didn’t have time to contest the latest complaints until after my Tumblr account had been terminated.
This time I sent Tumblr a counter notification to the DMCA complaint. I contested the take-down and asked for my account to be reinstated.
I said the posts in question contained photo art that clearly falls under fair-use provisions of copyright law.
The photos in question are protected speech because they are “transformative works.” In the three cases cited, only a portion of the original photo was used, with commentary text added to the photo to parody the original subject matter. This type of fair use is legal and commonplace online today from Perez Hilton and Cheezberger LOLs to Tumblr’s own Texts from Hilary and McKayla Is Not Impressed.
Also, the posting of these transformed works will not affect the market for Schaefer’s original photographs or deprive him of income.
Innocent victims of Tumblr’s brutal account termination were my two other Tumblr blogs. One was my attempt at an Internet meme in the vein of Hot Chicks of Occupy Wall Street focused on the 2012 Chicago teachers’ strike called Hot Chicago Teachers on Strike.
The other was my commentary on the absurdity of TSA screening procedures called Celebrities vs. the TSA. It aggregated photos of well-known celebrities like actresses Halle Berry and Megan Fox being subjected to full-body pat downs and other indignities in the name of airport security. Compiling those photographs was a huge undertaking and provided a useful index for people interested in how little common sense the TSA uses when it conducts passenger screenings.
Writing about my first run-in with Tumblr’s copyright cops in February, I noted how messed up their handling of DMCA complaints was.
Instead of just removing the photos in question, Tumblr deleted the posts that included them. So, they not only took down the photos, they also deleted my research. That research included information about the players involved, the game, date and location, as well as weblinks back to the original photo sets and more. That information was mine and wasn’t subject to a copyright take-down.
In writing about Yahoo’s purchase of Tumblr on Sunday, I said Tumblr “need to fix its heavy-handed response to alleged copyright violations.” That goes double today.
Tumblr should at least give me the option of downloading all of my Tumblr posts so I can transfer them to WordPress or some other blogging service. Right now, all of my work is locked up in some digital dungeon.
Photo: What my Tumblr blog looks like today.
In fairness, Yahoo had nothing to do this. They own Flickr which is a den of copyright violation and smut. ;-)
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