I stay of out shit like this, usually, and this individual is a troll, and I know that. However, fandom aside, when you bring up art and free speech and copyright law and feminism, I’m going to respond. Usually angrily.
Rant ranty rant ahead…
Alright, the title is misleading because I’m not defending Tosh. The content he allows on his website is offensive and misogynistic so I gather the dude is an asshat. With that said, this whole incident with the Gishwhes “cheese” photo getting onto his site for millions to see is not his fault.
Correct. No one is at fault for this. The woman in the picture posted it herself publicly. I’m not a lawyer, but I’m guessing that Tosh and his staff can claim fair use because they’ve used the photo for commentary. The woman has every right to ask them to take it down, and they have every right to refuse. Misha Collins has every right to call Tosh out on it.
Not necessarily. Fair use doctrine is a defense that has to be determined by a court on a case by case basis, it’s not a part of copyright law you can look at and say this or that use is covered. Until a court issues a ruling on it, it’s just copyright infringement. And if it does go to court? Even things people usually assume are automatically considered fair use, like parody, have been ruled infringing.
In other words, Tosh could *claim* fair use for using this image, but that doesn’t mean a court would agree with him.
(IMHO* it wouldn’t be ruled a fair use and he probably wouldn’t try to claim it was. Among other reasons, it is very unlikely that an image used on a commercial website would be considered fair use.)
Still, what I advise any copyright holder to do instead of mounting a public campaign to get a © photo you don’t want people distributing removed is just to quietly send the web service (if it’s in the U.S.) it was reposted on a DMCA takedown notice informing them of the copyright infringement, which by law requires it to delete the image or disable access to it in a timely manner if they want to keep their safe harbor protections (what keeps the company from being legally liable for all the copyright infringing stuff their users upload to their accounts).
As for the rest of her post, yeah, ughh, rawr, they be trollin’ trollin’ trollin’…
*I am not an attorney, nor do I play one on Tumblr