August 20, 2008

Theorizing privacy and copyright: addressing “fair use”

Posted in activism, empowerment, entitlement, ideology, objectification, representation, sexual politics, Sexuality Blogs and Resources, victim-blaming at 12:00 pm by LB

For those of you who have missed it, I blog fast and furiously on women’s privacy in public places and online, and am very concerned with the lack of control women have over the use of their images. Of course, women don’t have any less control than men do, but in my previous posting, I have stated why I think this is more of a problem for women–including that in a culture that has historically deemed women’s bodies as for public consumption, there is much less respect for a woman’s privacy period, much less if she dresses/acts in a “certain way” or appears in a “certain place”.

The crux of my concern is: How can we really experience sexual liberation (that I maintain has not been accomplished yet) if we, as women, cannot control the terms by which we are turned into public sexual objects?

The most recent example of this is, of course, is with Olympic gymnast Alicia Sacramone. Several others have posted very nicely on this, and I was a bit bust this weekend, so please read their excellent posts. Let’s hope there’s no repeating last summer’s experience of a track athlete.

One issue I have had is, aside from changing cultural attitudes–the ultimate problem-solver–how do we go about making any practical change? Until I started reading online more this past fall, I honestly had no clue that guys would peruse Myspace and Flickr pages, looking for women to ogle, objectify, call names, produce fantasies of, etc. on their own sites, denying these women the right to just live their life. As a reasonable human being, it never dawned on me that someone would feel so entitled to photographs of a birthday night-out with friends that I needed to protect myself. And it’s not like I exactly live under a rock–I have done Myspace and Facebook, use Youtube sometimes (usually to find something specific, not to check out the most recent and ridiculous videos). But I haven’t altered my life all that much around the internet, so it is more of a resource for me, and not where I live my life. And since I don’t do Google searches for “sexist asshats displaying male entitlement to women’s sexuality,” I hadn’t stumbled on this phenomenon until I began reading more and more online in the past 9 months or so. And now that I see this happen regularly, each time breaking my heart, this is something I can’t not comment on, and something I’m determined to work on in activism.

So getting to the point of this post: I was on the Creative Commons website, and I noticed that you can copyright your images and prevent downloads on a site like Flickr, a perhaps little-know fact which is blog-worthy all in itself. So I did a little more digging.

From The Creative Commons website:

Creative Commons licenses give you the ability to dictate how others may exercise your copyright rights—such as the right of others to copy your work, make derivative works or adaptations of your work, to distribute your work and/or make money from your work. They do not give you the ability to restrict anything that is otherwise permitted by exceptions or limitations to copyright—including, importantly, fair use or fair dealing—nor do they give you the ability to control anything that is not protected by copyright law, such as facts and ideas.

Creative Commons licenses attach to the work and authorize everyone who comes in contact with the work to use it consistent with the license.

If such photos were subject to “fair use” by these asshats, their being under copyright makes me think their source would need to be cited. Would it really be so hard to have web software require to link to a source in order to upload photos? (which would only mean your own photos would have to be hosted on a photo sharing site first). I use WordPress for my blog, and whenever someone links to me, it shows up in part of the admin functions. Would it really be that hard to require photo-sharing services such as Flikr, Picasa, etc. to offer that feature as well? With requiring links and providing notification of linking back (“trackbacks”), this would at least give people the power to know where their images are showing up and help stop their unauthorized usage, even if it can’t be prevented.

But what is “fair use” even? From the U.S. Copyright Office:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

[…] Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney. (emphasis added)

It is clear to me that it is not clear that taking images of women that are not on (for example) porn sites and putting them into a sexualized context at all constitutes “fair use.” Or, pushing past the practical and into the philosophical, that photographing up a woman’s skirt on a bus is any “fair use” of their body’s representation. It is a taking out of context. It is abusing the way the “author has expressed himself [sic].”

This is clear to me. However, it may not be so clear in a culture where a woman’s dress or behavior or sexual history is an excuse to consider her as sexual property. That if a woman wears particular sexy clothing, then she is open for commodification and objectification. Or even if she wears little clothing for practical purposes, she is open for sexualizing. Beach Volleyball, anyone? You know, the old “she’s asking for it.” Of that if she is a sex worker, she is the public property of men–the idea that prostitutes can’t be raped, or that the sexual harassment of a porn model is permitted, or that private sexual photos of a stripper appearing online without consent is no big deal. That if a woman had sex with someone before, then her consent belongs to you: her “nos” don’t mean anything (it’s not rape!), and it’s ok to videotape (without consent) you and your girlfriend having sex and then posting it online (again without consent). Whenever I see the latter on torrent sites, I comment that what they’re doing is illegal, and guess what? I’m always told to lighten up. Or if I see some guy has posted pictures of his ex-girlfriend unbeknownst to her (because I guess the non-consensual aspect of it adds to their masturbation appeal) and I post a comment that it’s illegal, I am told, “if she’s a slut enough for taking the pictures then she’s a slut enough to be porn everyone else.” What? sexual women aren’t male property?

The bottom line is this: the expectation that control over our sexuality means control over and making decisions about when and how we are sexualized publicly (meaning not in someone’s head) does not in fact exist in our culture. And unsurprisingly, this is overwhelmingly affecting women. It used to be that if a woman walking alone in public she was assumed to be prostitute: available for male sexual consumption. From an ideological perspective, have things really changed when women wearing particular clothing in public (or just having a particular body) should also expect to be treated “like a prostitute”? (not to mention how problematic such an understanding of treating someone “like a prostitute” is-I mean how does one “treat a prostitute,” who is nothing more than someone who willfully exchanges money for sexual services?) Is this really what we call sexual freedom?

I’m really troubled by the “speech” arguments around this issue as well. (see the comments on my earlier post and on the feministing community cross-post) People seem to be so willing to protect the “speech” of the jerks who do this. Yet is this also not infringing on the speech of the women themselves? We are basically saying to them that they have “free speech” in posting images, but only insofar as they are willing to have their “speech” (photos) taken out of context and used in ways they have no control over. Is that really free speech?

Perhaps my suggestions for software requirements could start some sort of change. As I said earlier, when I first posted photos to Myspace and Flickr, I was not even on my radar that this kind of shit could happen. I don’t recall noticing among all the possible options that I could copyright my images or make them unable to be downloaded. More importantly, if I did notice those options, I had no idea why I might want to use them. I mean, I want to share pics with my friends, right? I have to think lots of people are as ignorant as I. In fact I know they are–because when I’ve told them about the various stories I’ve written about, they’ve been shocked and horrified. Better information for the consumer is needed on these photo sharing sites, who may not know they need to be looking for these protections, as well as for the people who are using images illegally who might think that anything on the internet is fair game, and who think, how would anyone find out anyway? Well, I’ve suggested one way we can help consumers know who’s using their images. And this isn’t just for those who have chosen copyrighted protection; you don’t even have to officially copyright images through the government or through Creative Commons, according to the U.S. Copyright office:

The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”

Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time.

All those pictures are thus already copyrighted. We need our technology to provide ways to enable proper usage.

And until we push for ideological change, women’s bodies will continue to be deemed “fair use.”

Help yourself and others: encourage people to make their Flickr images copyrighted and/or non-downloadable if they wish by going to:


Be careful because your copyright overrides your download preferences!

And to those who want to turn an accomplished athlete into sexual fodder to pathetically perform your masculine entitlement to women’s sexuality, kindly fuck off.


  1. Astraea said,

    Thanks for the link!

    This is an awesome post. I love the idea of trackback notices for photos posted online.

  2. earlgreyrooibos said,

    Absolutely fabulous post. I love a good discussion about copyright. Studying IP in grad school seriously made me consider law school. but I never really thought of it in terms of gender, and the ways in which women are refused the right to control their own images. This is definitely one of those “I wish I had thought of that!” posts.

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