It's easy to lose faith in the American judicial system these days, but every once in a while a ruling comes down that reminds you this country's ideals still live on in the hearts of at least a few true patriots out there. It just so happens that one of those very rulings was issued yesterday by a judge in New York, who declared at long last that, yes, you can censor Jon Hamm's big ol' dong for comedy's sake and not worry about copyright infringement.
Suing the pants off of HuffPost — Maybe some background is in order. In 2014, HuffPost ran an article entitled "25 Things You Wish You Hadn’t Learned in 2013 and Must Forget in 2014," which included a photo of Jon Hamm casually walking down a street, his infamously large schlong jokingly censored via a small, black box featuring the statement, "Image Loading..."
Get it? "Image Loading?" Like, it's so large that it takes a while to download. Pretty good, right? Well, the guy who took the original photograph, Lawrence Schwartzfeld, didn't think so. He sued HuffPost and its owning company, Oath, claiming their unlicensed usage of the picture counted as copyright infringement. In the lawsuit, Schwartzfeld explained that his photo, "illustrates what Jon Hamm looks like wearing trousers in public while he walks down the street, ostensibly without any underwear." Which is a polite way of saying he has an elephant [IMAGE LOADING...]
Anywho, yesterday a U.S. District Judge, Ronnie Abrams, ruled in HuffPost's favor, agreeing with the company's lawyers that the minor alteration was "transformative" enough for the image's usage and context, and thereby constituted using the original image under "fair use" copyright exemptions. HuffPost and Oath also tried justify the photo's usage by claiming their version was a "parody," although Judge Abrams wasn't as keen on that line of reasoning. Even so, the "transformative" nature of the censor box, photo caption, and text was enough on their own to warrant fair usage by the publication. Per the ruling:
In sum, the Court finds Oath’s use of the Photograph was transformative because it used the Photograph in service of its dual goals of mocking both Hamm and those who fixate over such suggestive photos of him—a use distinct from that which Schwartzwald intended—and because Oath obscured the very portion of the Photograph that made it most valuable or unique in the first instance.
Less stiff parameters for content — While the subject matter is amusing enough, the ruling really does have some pretty serious ramifications for content creation on the internet, which seems to set some pretty broad parameters for what counts as "transformative" alterations to someone's original visual work. As Gizmodo notes, Judge Abrams made sure to give some examples of reuse that did not live up to the "transformative" qualifications. Namely, a 2015 case against Fox News for their unlicensed usage of an image of the Twin Towers with "#NeverForget" superimposed across it, which instead counted as a "derivative" and therefore illegal. This led Gizmodo's Matt Novak to put forth the following "transformative" image for consideration:
It inspired our own variation in the article header, which we are eager to remind everyone is very transformative and not sue-able, either. Anyway, we officially declare the #JonHammDickChallenge a thing. Get to work on your legal alterations. Happy Friday, everyone.