24 January 2009

The Annals of Fair Use ~ The Politics of Michael v Michael (Yon and Moore)

Major Mark Bieger holding Fatah after a car bomb
attack, Mosul, 2005
Photograph © Michael Yon.

Over at State of the Art I stumbled across this report on photojournalist Michael Yon's threat to sue Michael Moore for copyright infringement. At issue is Moore's use of the photograph I've lifted above. David Schonauer concludes the SotA post this way:
"I didn't see how Moore used the image. But I'm wondering what legal basis Yon has for his proposed suit. Fair use covers a lot of ground these days."
This seems like reasonable perplexity to me. I am not a big fan of Moore. He has, I think, become something of a caricature of himself, but hardly more so than the Glen Becks and Ann Coulters and Amy Alkons and Rush Limbaughs who inhabit the archipelago of right-wing fantasy islands. But still, despite the huffing and puffing from Yon and his lawyer, I don't see anything resembling a plausible legal case here. Indeed, I suspect Yon would already have filed the case if he actually thought there is one. It has, after all, been six months since he went public with his complaints. So, I thought it would be worth taking a look to see what might be going on.

I figured that a good place to start would be with Moore. His web site is not very user friendly (no archives, search via google which turns up way to much stuff) and despite poking around for a reasonable amount of time I've not been able to locate the offending image. I searched under Mosul, Michael Yon, and Bieger all to no avail.

The next step, obviously, is to see what Yon has to say. You can link to his initial blog post about the photo here. You can link to his posts about the threatened suit here and here and here. In the second of these posts, Yon reproduces the entire page from Moore's site to show where his photo appeared. The page is from the late spring of 2008.

Here is an enlarged slice of that page. Yon's photo appears at the right side of the header, the text of which reads: "John McCain and Hilary Clinton voted YES to start George's War! 'You don't want someone in the Oval Office who would make a colossal mistake like that.' - Michael Moore"

Here are the relevant bit's from Yon's commentary:
"Now here’s Michael Moore, the latest infringer, using my work for his own crude political purposes. I recall some years ago watching one of his movies in Paris, and thinking how sad it was that an American would make propaganda so flagrant that it seemed pornographic. It was sad but at the same time uplifting, because Mr. Moore was able to exercise his right to free speech, rights that should never be infringed upon.

Mr. Moore is influential, rich, and could likely intimidate most photographers. But I ask my readers to please leave him be. Attacking him likely will be counterproductive. I know how to fight, and though I would fight for Mr. Moore’s right to free expression, I will fight against him if he steals my work and uses it in an inflammatory fashion.

It’s got nothing to do with the fact that Michael Moore is anti-war (he’s not just against the Iraq War, but he was also against the war in Afghanistan). I respect Moore’s opposition to the Iraq War; I might even agree with him on some particulars. But I object to the tone of many of his arguments, especially the manner in which he uses my work to further his causes. As I said above, sometimes it seems pornographic. That’s a strong word, so I’ll explain.

Justice Potter Stewart once defined pornography by saying, “I know it when I see it.” Pornography and propaganda are closely related, as they are both cynical attempts at manipulation, rooted in a lack of respect for humanity. War Porn is one of the more disturbing developments in the new media, as people on both sides of the Iraq War get their kicks watching video images of death and destruction – as long as it’s their opponents who get killed. Whether it’s an Al Qaeda cell-phone video of an IED attack or the grisly footage of a Coalition air strike, War Porn is degrading and incendiary. Of course, some footage is newsworthy and informative and the public deserves to see it. There is also great value to soldiers in watching footage for training purposes and to better understand battlefields and weapons. But at some point, especially when the material is used to make political points, images of combat can cross the line into pornography. People die in war, but we must never forget that each casualty is a human being, even people as deserving of death as Al Qaeda. Denying our opponents’ humanity, we lose a little of our own.

When someone’s grandmother disseminates the photo of Major Beiger cradling a dying girl in his arms, I allow the usage because I feel she is trying to share the human tragedy. When Michael Moore puts that same photo on his web site, alongside images of George Bush, John McCain and Hillary Clinton, the clear implication is that Farah’s death is their fault. That is a misrepresentation of the facts on the ground, as well as the story of the photo. Farah was killed by a suicide car bomb in Mosul on May 2, 2005. Major Bieger and other soldiers literally risked their own lives to save many children and adults that day, but Farah didn’t make it. Michael Moore apparently does not understand the moral distinction between a man who would murder innocent people, and a man who would sacrifice himself to save them. The photo, as I took it, is the truth, but Moore uses it to convey falsehoods. His mind is that of a political propagandist who sees Farah’s death not as a human tragedy, but a tool."
Let's set aside Yon's treacle about kindly grandmothers and common humanity. This passage strikes me as, by turns, disingenuous and hypocritical. Disingenuous? Sure, because I don't think Yon gives a hoot for Moore's free speech rights. Neither do I think Yon respects Moore's views. How can you respect someone while leveling ad hominem attacks against him, characterizing him as a crude propagandist and purveyor of pornography? I'll leave it to Yon explain how that works.

So here are some basic questions about Moore's banner. Would little Fatah have died so prematurely had the U.S. not invaded Iraq? Would she have died in the gruesome way she did? I'd say unlikely and more so. In ascribing responsibility for her death it matters a great deal how narrowly or broadly we frame our inquiry. Clinton and McCain did vote to authorize the war. Did U.S. troops kill the child? No. Did McCain and Clinton? No. But there is a causal chain that leads from the Senate authorizing the invasion to the presence of American troops in Iraq to the emergence of insurgency and civil war in Mosul. Does any of that excuse the individuals who deployed the car bomb that killed Fatah? No. But sometimes it is important to see connections. That's called the 'big picture.' Once one sees that, matters of responsibility - direct and indirect - and consequences - intended and otherwise - are there on the table so we can argue about them. Such arguments are especially important in the course of a political campaign which is when Moore displayed this banner. There hardly is a time when free speech matters more.

Yon is being hypocritical? Let's see. He accuses Moore of purveying "War Porn." Again, some context is probably helpful. At this juncture, the ever vigilant New York Post has weighed in several times on the matter of Moore's alleged transgressions. The Post reports, which you can find here and here, are helpful. I will set aside the fact that these reports themselves prejudge the case entirely. They read more like press releases from Yon than journalistic accounts. Nevertheless, from the Post we learn that:
"Yon has been very careful about how his images are distributed and goes out of his way to make sure they aren't used for demagogic diatribes."
"Yon, a former Green Beret, has been embedded in America's war zones since 2005, most notably with the "Deuce Four" - the Army's storied 24th Infantry Regiment in Mosul, where the photo was taken.

His dispatches - free of any mediating institution - have earned widespread acclaim for their cutting insight."

So, being embedded with a military unit and complying with their rules for making and distributing images means Yon is "free of any mediating institution"? Charitably, this is a howler. There have indeed been un-embedded reporters and photographers working in Iraq [1] [2]. Yon was not among them. Perhaps the Post has printed fawning stories on those individuals and their work. I don't recall. But it is stunning to hear that embedded reporters operate without mediation. In Iraq, Afghanistan and here in the U.S., the military operates, among other things, a media enterprise and a highly censorious one at that. Ask Zoriah Miller or Chris Hondros [1] [2]. I have written here repeatedly about the ambiguities of embedded photography in its various guises. The issues involved hardly are black and white. But for Yon and his surrogates at the Post to claim he is offering us unmediated "Truth," while portraying the demagogic Moore as peddling pornography and propaganda is a very, very big stretch.

Yon accuses Moore of using Farah's death as "a tool" in a nefarious political offensive. Yet he himself is using the same image on the cover of a book entitled Moment of Truth in Iraq published by Richard Vigilante Books. The publisher, as far as I can tell, generally releases right-wing screeds and receives the bulk of its press from outlets like The National Review. I've not read Yon's book. I don't intend to. But he surely has taken many, many many photographs that he might've used on the cover. Does plastering his photograph of Mark Bieger and Farah across the cover count as using her death as "a tool?" Is he exploiting that image for commercial purposes? For political ones? Or does the "truth" he proclaims from his embedded vantage point absolve Yon of such suspicion? Taking a step further, the true cynic might wonder if Yon is complaining about Moore's use of the Bieger/Fatah image simply in hopes that it will boost sales of his own book. (His complaints more or less coincided with the release of the book last spring.) That is not for me to judge, but it is interesting to speculate whether Justice Stewart might entertain the possibility?

One interesting thing about this whole flap is that now it is not only difficult (impossible?) to locate Yon's image on Moore's web site but, other than the image above that I lifted from one of Yon's "dispatches," as far as I can tell neither the Post nor any of the many shocked and outraged bloggers who've commented on the matter have bothered to actually reproduce the offending display. So, even if we were to put aside the possibility (a high probability) that Moore's use of Yon's photograph will easily be covered by the fair use doctrine, we might pose some questions. Where, exactly is the infringement? More importantly what might Yon claim damages for? After all, he is the one who is drawing attention to an alleged "misuse" of his work that even interested parties cannot locate.

Yon's legal case, if it ever actually materializes, is a certain loser. That is because it is politically inspired and transparently so. As Yon himself states, what has got his knickers in a knot is that he dislikes "the tone of many of his [Moore's] arguments, especially the manner in which he uses my work to further his causes." Too bad Michael, the other Michael can say what he wants in whatever tone and for whatever purpose he likes. Oh yeah, and the reverse too.

Labels: , , , ,


Blogger Dawei_in_Beijing said...

Is what Moore doing any different from someone cheery-picking quotes from a book to pursue a particular line of reasoning, while completely misrepresenting the author's original views?

You might be right that Yon has no case, but can you blame him for being upset?

24 January, 2009 18:21  
Blogger Jim Johnson said...

D ~ The problem with photography generally is that there is no way to control the images once they are out in the world. and in the U.S. the 'fair use' doctrine has enshrined that fact.

My beef with Yon is that he is totally disingenuous. What is bothering him is Moores politics. Period. He has no legal leg to stand on. That may or may not be a good thing. But it sure creates the appearance that he has pushed this flap with Moore to sell books. What could be better press - from the perspective of a fledgling right-wing publisher and a relatively obscure photographer - than a fabricated controversy with a famous pinko?

And that is exploiting the little girl's death every bit as much as Moore has done. Yon's simply draping his exploitation in sanctimony.

I hope all is well with you.

24 January, 2009 18:32  
Blogger Public Squalor said...

I agree with your take on Yon but doubt Moore's use of his image constitutes fair use. David Schonauer's statement implies the terrain of fair use has expanded, "Fair use covers a lot of ground these days." In a legal sense, the opposite is true. In recent decades, big corporations have relentlessly pushed Congress to expand "intellectual property rights" at home and in trade agreements.

In a pragmatic sense maybe Schonauer is correct since a copyright holder needs the financial means to sue the offender, and that's no small matter.

- peace

- peace

25 January, 2009 10:19  
Blogger Stan B. said...

There's certainly a hell of a lot more than a "casual chain" between US involvement and that girl's death. The US arrived (under fatally flawed and false pretenses), the occupation ensued, the insurgency arose, and thousands upon thousands commenced to die until this very day. It doesn't take a genius to realize that if that first underlying cause in that deadly chain of events hadn't occurred, that girl and thousands like her (and their parents) would still be alive today.

The picture itself is propaganda. It implies that US soldiers are there to protect Iraqi children, when their presence has directly and indirectly caused the deaths of thousands.

25 January, 2009 13:07  
Blogger Dawei_in_Beijing said...

Hey Jim, I wanted to thank you for bringing Waltz With Bashir, to our attention. I saw it tonight, and was very impressed. I'd love for you to post a review if you see it!

25 January, 2009 16:17  
Blogger sconsetmonkey said...

This past August I had dealings with Moore's people regarding the potential use of some of my photographs. They were very kind when they approached me and yet when the issue of licensing arose the conversation on their end ceased immediately.

They did return once again and dangled a photo credit offer to me.

OOoooo! A photo credit! No thanks, I'm no Star F'er.

...a copyright holder needs the financial means to sue the offender, and that's no small matter.

Shortly thereafter I ran into just this circumstance with a millionaire congressional candidate that used one of my images in ad this last cycle.

"Fair Use" were the first words from their mouths. I opted not to pursue this issue as my attorney's fees would be a wash against the return if I won in the end.

26 January, 2009 19:55  

Post a Comment

Links to this post:

Create a Link

<< Home