She Who Will Be Obeyed!: Pictures of Debbie

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May 3, 2006

Pictures of Debbie

I am not a lawyer, nor do I play one on TV, but I am smart enough to look up legal precedents, codes of professional conduct and the law.

Debbie Schlussel (who does not deserve the traffic a link from me would get her) sent me numerous emails yesterday that were of an extremely threatening nature. This is *not* the first time she has done so, and I am *not* the only person she has threatened with legal action or other threats based upon using a link to her photograph that is published all over the internet or simply because you have the temerity to disagree with her. Debbie claims that this is copy right infringement and sends harshly worded emails to those of us with a different viewpoint of hers threatening to sue us and more. I'll get to the copyright infringement discussion later in this post. Let's look at professional conduct, first.

The Preamble to the Michigan Bar Association's Rules of Professional Conduct (MRPC 1.0, Rule 1) states:

. . . A lawyer�s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer�s business and personal affairs. A lawyer should use the law�s procedures only for legitimate purposes and not to harass or intimidate others.

Further,

Many of a lawyer�s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession�s ideals of public service.

Source (Italics mine)

Well, here is Debbie's first email to me (well first one she sent me yesterday!) I had a post that was a commentary on how misguided Debbie is in her characterization of an eagle pin sold in the Library of Congress Gift Shop as being equal to a Mexican Eagle and the Eagle used as a symbol by the crazy AZTLAN bunch.

I made what I thought was a clever comparison of Debbie being not equal to Ann Coulter by using both of their pictures. The picture of Debbie I used was actually one of the prettiest pictures of her I could find on the Internet - (as her ugliness is in her behaviour, not her looks).
So, this is what Dearest Debbie sent me within 5 minutes of my posting the entry in question:

This is a cease and desist notice.
It has come to my attention that at the following URL
on your website:
http://www.thedonovan.com/beth/archives/005705.html
you have posted a photo of me to which I hold the
exclusive copyright. I did not and would never
license the use of that photo to you. Therefore, your
use of the photo is illegal and in violation of
federal copyright laws. Please immediately remove the
photo and cease and desist from posting it in the
future. If you do not do so immediately, I and my
attorneys will seek statutory damages, costs, attorney
fees, and other related remuneration. Federal law
provides statutory damages of $30,000 to $150,000 for
such copyright infringement.

Naturally, Debbie had to add a little unprofessional ism to her email:

Since you claim--and that is the operant word,
"claim"--to be a conservative, you will immediately
cease and desist the violation of U.S. copyright law
and the robbery of my property, which includes my
copyrights.

Debbie Schlussel

I can't help myself - operant word is an incorrect phrase, Debbie - you should have used operative word - a recognized idiom with meaning.

I truly object to her characterization of me as a criminal, also - she used the phrase "robbery of my property". First of all, copyright infringement is not yet a criminal offense, it is a civil offense. Secondly, she is defaming me by saying I have robbed her property.

Defamation is also a civil offense, in case you didn't know.

Okay, I do not feel that publishing her picture as part of a commentary on her commentary is copyright infringement, so I wrote her back and said:

Debbie -

This photo is on the World Net Daily site. Not yours.
You are a public figure, therefore, you have no copyright to a picture
that is on public display.

Cheers,

Beth

Now, upon looking into the law, it appears that being a public figure makes no difference, so I was wrong on that - but I'm not sure she really is the copyright owner of that picture, since it is on WND. So I was very possibly mistaken there, and even if she is the owner of the copyright, I believe I should be able to use it as part of a blog entry about her because of fair use.

Anyway, Debbie shot back with:

Beth:
I don't know who is advising you (nor do I care), but
he/she has no concept of copyright law. You are in
violation of my copyright, and you MUST take the photo
down IMMEDIATELY.

The fact that I granted WND limited license to use the
photo with my columns does NOT mean you have the right
to use it. You will be laughed out of court. I still
maintain the exclusive copyright to the photo, and
believe me, I would love to sue you for the at least
$30,000 (and in this case, more like $150,000, since
you are aware it's copyrighted and are refusing to
take it down) that is statutorily provided. Being a
public figure or that the picture is on google's
search engine or on WND is NO defense.

Are you ready to face me in court and pay up? No
attorney worth his/her salt in this area would take
the case. You will lose. If the picture is not taken
down by Noon Eastern time, I will alert my attorney
Mitchell Musial and instruct him to prepare the
summons and complaint. Since this is your and your
husband's site, we will name both of you as joint and
several defendants.
This is very serious.

Debbie Schlussel

Debbie, Debbie, Debbie - have you no idea what professional conduct entails - do you really think you are being civil here?

Here is the rest of the email stream if you can stand to go through the whole thing:

Since I am the owner of the photo and also hold the
exclusive copyright to it, I have the right to choose
to whom I grant a limited license to use my copyright.
I have not nor will I ever grant you such a license.
I have just checked your site and the photo remains.
Again, you have until 12:00 p.m. Eastern Time, today,
to remove it. That leaves you about 55 minutes. I
have also instructed my attorney to contact your host
to demand that your site be taken down until the photo
is removed. We are also keeping track of the amount
of time the photo is remaining up. Again, statutory
damages for this is $150,000 plus attorney's fees and
costs. And we will seek it. I will NOT settle with
you once this matter is in my lawyer's hands.

Comments

Very nice summary.

Posted by: caltechgirl at May 3, 2006 5:03 PM

What a nutter!

Posted by: Ith at May 3, 2006 5:44 PM

(Shakes head)
I know. It's the principal of the thing. The appearance of giving in to a bully(and if it didn't actually cost money I'd say call her bluff). But is this worth it anymore SWWBO? A joke's a joke, but picking on ToaC is getting old, as are her threats of lawsuits.
She ain't worth the time or effort(or the hit to the gun and hobby fund!). She'll get hers some day. Maybe the detested CAIR or ACLU you will club her like a baby seal in court someday over her WAY over the top antics.

Posted by: ry at May 3, 2006 7:41 PM

We're following through with the formal complaint to the Michigan Bar, Ry.

One complaint means little... but many, well, many have weight.

She's a bully. And worse.

Yer opinion is noted. But yer big brother is going to do what he's going to do.

Windmills 'R us.

Posted by: John of Argghhh! at May 3, 2006 7:45 PM

Shouldn't that be 'Windmills 'R We"? Good luck on the complaint.

She seems to be protesting often and loudly that she purchased the photo and copyright. I've worked with a fair number of photographers and purchasing the copyright would be unusual. It sure could be done, but I've never actually heard of anyone doing it. You might want to follow up with whoever took the photo. Hard as it might be to believe, she might be mistaken... No that can't be it.

Posted by: hdw at May 4, 2006 10:46 AM

Okay, where do you want me to dig the trenches, build berms or revetments, and plant the sighting stakes? THis sounds like it's going to get good and interesting.

Posted by: ry at May 4, 2006 10:57 AM

Oh, Beth ~ you said "cheers" to her. How lovely, nice and polite. She seems to be a very cranky person. And a trifle unhinged.

Posted by: tree hugging sister at May 4, 2006 12:55 PM

As hdw said, it's very unusual for a photographer to transfer the copyright of an image.

However, as I noted in a comment over at The Castle, she does own her 'likeness' which means that while the photographer (who owns the copyright on the picture) has control over it, so does she (but to a lesser extent).

That's why I have some nice pictures of Lynyrd Skynyrd in concert that I can personally display and make other Fair Use of but not sell - they (or more properly their management company) own the rights to their 'likeness'.

I'd check with the photographer. If she didn't get the copyright transferred to her then she's giving out bad legal advice by implying the copyright came with the purchase. If I were a Bar Association I wouldn't want my members giving out blatently wrong advice in a public forum that could easily lead to them being sued later.

Posted by: KCSteve at May 4, 2006 2:08 PM

I would argue that as a public person, she has less control over the use of her image, too.

Your Lynyrd Skynrd pics could well be covered because you had to pay to get into the venue, among other things - I would argue that a free concert might not have quite the same protections, but, I'm not a lawyer.

Then there is the whole issue of satire and parody. If she's foolish enough to drag us into court, I'll get amicus briefs from the boys of South Park.

She may have grounds on that particular image, certainly. The hand-done image of that image that I just did have should have no more protection than does Campbell's Soup from Andy Warhol.

Posted by: John of Argghhh! at May 4, 2006 2:14 PM

Doesn't she used pictures of movie posters and celebrities on her site? She had one of North Country up a couple of days ago.

Whatever. I think shes just jealous because she's not the hottest lawyer in Ann Arbor any more.

Cheers!
:o)

Posted by: E.M. at May 4, 2006 2:55 PM

I had to study copyright a bit for my technical writing minor.

Whoever created and published the photo holds the copyright. I don't know about "selling," but the photog may have assigned rights to Ms. S., or if she commissioned the photo(s), it's quite possible she is the (c) holder.

While she may be able to quote the penalties, that does not mean she has a good grasp of copyright law. At the least fair use allows libraries to provide free access to all purchased works, not to mention the right to reference another work in a review, article, etc.

Beth may have managed an end run merely by including the line "image copyright (c)2006" Debbie Schussel" under it, even if she only granted limited repro rights to World Net Daily. Does a columnist have to ask permission to reproduce an AP photo as long as she includes that copyright notice?

What I would like to see, theoretically speaking, is whether La Schussel would be laughed out of court, or reprimanded by the judge, then laughed out of court. I doubt she'd see anything like the maximum penalties for a case like this.

Posted by: Casey Tompkins at May 8, 2006 12:32 AM