I am writing today to announce the closure of the New Mexico Independent. After three and a half years of operation in New Mexico, the board of the American Independent News Network, has decided to shift publication of its news…
While environmental activists played their part yesterday during demonstrations at the capitol building, going so far as to dress up as solar panels and to sing the tune of “You Are My Sunshine,” their counterparts, the anti-cap-and-trade contingency who has…
Roughly one quarter of University of New Mexico students are unimpressed with the state’s flagship public school, according to a survey that questioned college students about their higher education experiences.
The image in White's ad.
ALBUQUERQUE — “Sheriff Darren White Stole My Picture…Then Tortured It!!!”
That was Tuesday morning’s screaming headline on the Duke City Fix, a local social networking and community blogging Web site.
According to Jon Knudsen, who blogs for the Fix under the name Johnny Mango, Darren White’s new campaign ad includes a photograph of Martin Heinrich that Knudsen shot and posted on the Fix this spring.
The photo Knudsen took of Heinrich.
In a lively discussion in the comments section of Knudsen’s post, Duke City Fix users have debated whether the ad represents copyright infringement.
According to Albuquerque intellectual property rights attorney Paul Adams, it wouldn’t take an expert to prove that the image used in the ad was Knudsen’s.
“The test for copyright infringement is called substantial similarity through the eyes of the ordinary observer,” he explains. If the matter went to court, a jury would be asked to judge whether the two images are alike enough.
Knudsen’s supporters argue that it shouldn’t take an expert to know that the photo was copyrighted. “At the very least, we have an issue of questionable ethics on our hands,” says Chantal Foster, the Albuquerque Web architect who created Duke City Fix in 2005.
Duke City Fix is hosted by Ning, an online platform for social networking and blogging. “Ning’s terms of service explicitly state that content created by Ning users is owned by them,” Foster says. The exact wording, as posted on the site, is pretty clear:
Ning does not claim any ownership rights in the Content or the Code you provide. You, as the Network Creator, own the Code you develop (“your Code“). You also own the Content you create and upload (“your Content“). After posting your Content or your Code, you continue to retain all ownership rights in such Content or Code, and you continue to have the right to use and license your Content and your Code in any way you choose.
“I think it’s a really big deal, to be honest, especially for someone who’s on the side of the law,” she says, referring to Sheriff White. “Internet rights and legal issues on the Internet are a big deal to folks in New Mexico. You think you’d check before using somebody else’s work.”
What irks Knudsen is not only that he believes the campaign used his image without permission, but that they took it from a story that was flattering to Heinrich and used it against him. Plus, he says they retouched it to make Heinrich look worse.
“I take my own shots,” instead of using official photos, Knudsen explains, “that’s why he looks so bad. But the White campaign took a bad photo and made it worse. “To retouch it is to manipulate the information. Usually they do it to make someone look better, but here they did it to make him look worse.” Knudsen says the version of the image in the television ad makes Heinrich look fatter, more pale and with a more prominent five o’clock shadow.
Knudsen says such changes are not likely to be the result of poor reproduction. “Nothing is by accident,” he said. “They knew exactly what they were doing.”
“I would advise him to send a letter to the creators of the ad … and say ‘Take it down or we’ll sue you,’ and I think that would probably work,” says Adams.
Asked what course of action he planned to pursue, Knudsen, who counts himself as a Heinrich supporter, says he’s not sure what he’ll do. “[Legal action] seems like a lot of trouble to go through, and I’d imagine that ad isn’t going to run for too long anyway. I think actually the controversy is enough for me. People talking about it. I mean, it’s kind of a sleazy thing to do.”
Some members of the Duke City Fix have suggested that the White campaign’s use of Knudsen’s photo might qualify as “fair use,” such as when photographs from a book are printed as part of a review of the book. But Adams is not confident that the White campaign’s use of Knudsen’s image qualifies as fair use. “It would be a very, very difficult defense for them to raise,” he says.
A spokesman for Darren White said he could not answer specifics about the ad but that he would look into the matter.
This post has been corrected. An earlier version contained an incorrect spelling of Jon Knudsen’s name.
