I initially declined Pulitzer’s request to remove the image for several reasons, notably because courts have consistently ruled that the use of a small portion of a copyrighted work in a transformative work for the purpose of fair comment and criticism and/or news reporting on an issue of public concern is protected by Section 107 of the Copyright Act. The photograph in question is a transformative work in that it creates a photo composite for the purpose of generating new information (a comparison), and my use of that photo composite is explicitly for the purposes of news reporting and fair comment and criticism given that I both reported the “news” of the discovery and offered comment and criticism on the similarities between the Nova Scotia and Florida swords.
Pulitzer maintained that my reproduction of the photo composite violates his rights because it will limit his ability to license the original photograph to Getty Images, which he said is in negotiations to license 100 such photographs from him for what he hopes to be potential sale to textbook companies. (According to Getty Images, they do not contract to acquire photos on a case by case basis but rather invite photographers to become members of their image service.)
While I maintain that my use of the image falls under the fair use exemption, since I’m not in the business of purposely making people upset and the photo composite isn’t my work to begin with, I told Pulitzer that I would consider his takedown request if he would provide documentation that he is in fact the rights holder of the image. This is an important and necessary step to protect myself in the even that others should demand images be removed. In order to protect the rights of everyone involved, it is essential that only legitimate rights holders make takedown requests. After all, anyone one can make a claim or use false claims to suppress criticism. This, of course, set off Pulitzer, who spent the better part of six hours last night repeatedly insisting that he had no obligation to prove that the photograph belonged to him before demanding its removal.
During the conversation, which he copied to his lawyer, Steven L. Green of the firm of Richardson Koudelka in Dallas, Texas, Pulitzer made a number of confusing claims that called into question his status as the rights holder of record. He claimed that he was the photographer who took the picture (though he declined to provide proof of such), but then said that all of his rights to the photograph had been transferred to one of “our” unnamed companies. He did not provide proof that he had the legal right to engage in legal action on behalf of the unnamed rights-holding corporation, or who the apparently plural owners of said company are.
When I requested this proof for my records, Pulitzer became upset and insisted that it was my legal burden to prove I was not violating his rights. I informed Pulitzer that establishing standing is essential for any legal action and will be required by any court, at which point he told me that I as the defendant in a potential court case have the burden of proof. Pulitzer’s lawyer did not participate in the conversation except to say he would remain silent.
I don’t know why Pulitzer is being so cagey and resistant to the simple request that he provide proof that he owns the rights to the photo he claims to own; it seems like a fairly simple thing. After all, I have to do it every time I assert copyright infringement against individuals who have copied wholesale from my work and, unlike this case, sell it for profit. Anyway, the long and short of it is that I’m tired of dealing with him, and he knows it. He threatened Andy White by asserting that he would file a lawsuit solely to cost White money (“See, takes nothing to file the suit, [but it] takes a tremendous amount to get out of one”), and he implied the same to me.
It isn’t right or fair that Pulitzer can bully his way into positive coverage by making improper legal claims and threatening people with financial ruin, but that seems to be his method. So, what I’ve done is replace “his” photograph with a fair use photograph of the sword from Italian eBay. With none of the material in my blog post even remotely belonging to him, he now has no legal footing to harass me or complain about my blog post (which has not changed in wording at all), and, best of all, there is now another blog post detailing the lengths he will go to in order to control how the public perceives his tenure as TREASURE FORCE COMMANDER. I guess we now know what he means by treasure and force.