Judging a cover by its book?

Stanford professor Joel Beinin, the subject of severe criticism in a recent book by David Horowitz, has sued Horowitz and his publisher -- not for the claims Horowitz makes in his book, but for using his picture in a collage on the book cover:

Beinin acknowledges that his lawsuit doesn't tackle the more profound issues of libel, free speech or academic debate -- rather, it focuses very narrowly on an unapproved use of a photograph.

``My photo is not out there for anyone to use as they see fit -- and certainly not to make money off it, by accusing me of doing bad things,'' he said.

Horowitz responds that he doesn't expect anyone to buy the book simply because Beinin's photo is on the cover.

``If I had George Clooney on the cover, OK, he'd have a case. But Joel Beinin? That's idiotic,'' Horowitz said.

I remember a thing or two about defamation law, but until today I never heard about anyone being sued for using someone's picture in a defamation action -- whether there was an accusation of "doing bad things" or not. If Horowitz lied about Beinin, that's one thing. But if the picture is accurate, I'm just not sure I understand the use of defamation jargon.

Here's the book-cover picture of Beinin displayed in a collage (he's on the lower left, underneath Lynne Stewart and beside Rachel Corrie):

BookCoverBeinin.jpg

Now, I haven't spent enough time researching him to decide whether or not I think he supports terrorism, as Horowitz claims. But whether I decided that or not, how would my assessment of his views affect (or be affected by) one way or the other an ordinary picture he displays at his biographical web site?

It might affect reader perceptions of this picture by Adrian Gaitan, titled "Joel Beinin speaks about Palestinian expulsion yesterday."

BeininRally.jpg

Hmmm.....

I think he might look more patriotic if I photoshopped an American flag in place of the PLO flag. But I just don't have time. If I did, would that make it a parody? Why would that change anything? How would I know? Are we not allowed to display publicly featured pictures of people under discussion anymore?

Even though Beinin's Complaint (which can be read here) makes numerous allegations which would be appropriate in a defamation action, this is not a defamation lawsuit, but one for copyright infringement. Horowitz is alleged to have used the picture from Beinin's web site without his consent.

What ever happened to the doctrine of fair use? (Law librarian raises the fair use question too.) Are we no longer allowed to identify public figures like Beinin -- even when their photographs are distributed all over the Internet? (The same photo of Beinin is displayed at an alumni web site.)

I think this is another example of the copyright laws being used to destroy free speech. I'm reminded of Fox v. Franken case as well as Michael Savage's lame attempt to claim his name and picture couldn't be used by Internet satirists, as it might "confuse" the public. (A similar tactic was once attempted by the New York Times, and more recently by Exodus International.)

Obviously, the use of a picture for parody is not the same as its use for political criticism, but I think both go to the very core of free speech. If Horowitz's use isn't fair use, then no blogger who criticizes, say, Ward Churchill, Cindy Sheehan, or Ann Coulter would be able to display their pictures.

At the rate things are going, I wouldn't be surprised to see someone using the copyright laws to stop the accurate quotations of words if the purpose of quoting the words is to disagree with them.

I'm trying to put myself in the professor's position. I wouldn't want to be called a terrorist supporter, and I don't think I am one. But if someone said that about me and used my picture, I hardly think my concerns would involve the picture! If I sued, it would be for the claim that I supported terrorism!

There's something very odd about this.

posted by Eric on 05.23.06 at 03:37 PM










Comments

This is just a legal means of harassment, I think. The guy is pissed and he can annoy the one he's pissed at. It is only weird if you assume he's acting in good faith.

Harkonnendog   ·  May 23, 2006 6:42 PM

The left wing, as well as Islamists, have made a fine art of using the legal system as a tool of harrasment and intimidation. Did you notice the threat by the Mexican government to file suit in American courts to prevent implementation of American laws against illegal immigrants. Miniscule costs for the plaintiffs, and at the very least, wastes time and money for the defendants, who cannot recover costs for defense outlays.
Perhaps it is time for a right-wing version of the ACLU to start a counter-offensive.

great unknown   ·  May 23, 2006 7:12 PM

I think you're both right, but people who have better things to do tend not to file lawsuits.

Eric Scheie   ·  May 23, 2006 11:19 PM

If Beinin is indeed not a supporter of terrorism, than printing his photo under a big headline like "Campus Support for Terrorism" is an act of defamation or libel -- just like posting your photo under the words "Campus Support for Child-Rape." The placement of the photo makes clear and unavoidable implications that can be proven or disproven.

As for why Beinin is suing for copyright infringement, rather than libel or defamation, I really can't say. Either he's just plain stupid (in which case a decent lawyer should have corrected him); or he can't sue for defamation because the implied accusation is true, so he's settling on a battle he can win.

Either way, he's at least as stupid as Horowitz.

Raging Bee   ·  May 24, 2006 11:20 AM

The Fair Use exception would not seem to cover using a picture on the cover of a book, especially in this context.

("In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work.")

Putting Beinin's picture on the cover doesn't seem transformative (it is not especially commentive or critical as part of a cover, and it can't be argued parodic at all, I think). Fair use isn't a license to use any copyrighted comment in the context of any commentary or criticism; it has to be used as part of the comment or criticism. And this picture just isn't.

On the other hand, I can't imagine the damages being very high, and it doesn't make Beinin look very good in the court of public opinion (or at least that public opinion that will a) ever notice and b) isn't already prejudiced).

Sigivald   ·  May 24, 2006 5:11 PM

The interesting thing is that Beinin didn't own the copyright until recently. He apparently had the original photographer sign it over to him.

Horowitz has commented about this on his site. The fact is that the pamphlet was produced before Beinin owned the copyright, so it seems to me that the original photographer would be the one who could bring legal action.

Steve   ·  May 24, 2006 7:35 PM

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