Update 2: Legal representatives for Memeburn have called on the site’s hosting provider, Hetzner, to back down.
“Use of the images of Axl Rose in the news article at URL http://memeburn.com/2016/06/axl-rose- tries-remove-unflattering-photo-web/ is considered fair dealing as contemplated in section 12(1)(c) read with section 15(4) of the Copyright Act 98 of 1978 in that the images were reproduced ‘…for the purpose of reporting current events in a newspaper, magazine or similar periodical…'” read an excerpt of the email to Hetzner.
“The article in question examined the actions of Axl Rose in attempting to prevent publication of the images in question, with particular reference to the ‘Streisand Effect’. It would have been strange to discuss the images in a news article without reproducing them. Use of images in circumstances such as these is what the above sections of the Copyright Act provide for,” it continues.
The representatives argue that, as a result, the hosting provider can ignore Rose’s takedown request.
“…our client is of the view that Hetzner is not in danger of being held liable for copyright infringement by hosting the article in question as it stands, and that Hetzner can thus ignore the takedown notification received by it in this matter. As a result it should not be necessary for our client to remove the images concerned.”
Update 1: We’ve embedded the takedown notices at the bottom of the page.
Original article: Memeburn, part of the Burn Media group of sites, has been sent takedown notices by legal representatives of iconic Guns ‘n Roses rocker, Axl Rose, and the site’s local hosting provider, Hetzner.
The takedown notice appears to revolve around an article regarding an unflattering photo and subsequent memes mocking the singer’s weight. The meme included some notable taglines such as “Sweet Pie O’Mine” and “Welcome to the jungle, we’ve got tons of cake”.
It seems Rose’s lawyers have been working overtime over the past few months issuing a slew of takedown notices across the web, after the initial memes of the musician went viral. The image spread even further as a result, being a textbook example of the Streisand Effect, as people shared the image in the process.
The original image, first spotted by Torrent Freak and Know Your Meme in June, was used as the basis for many memes. Despite the takedown notice, prominent sites continue to carry the images, including Google Image Search, The Daily Mail, News.com.au and others.
It’s worth noting that the initial takedown notices claimed that ownership of the image was at issue – the original photographer allegedly signed away his ownership rights to the photo. However, the takedown notice sent to Memeburn seems to claim otherwise.
“The publication of such multiple images in this instance is both unreasonable and excessive and, moreover, appears to be far from bona fide, insofar as publication — seemingly under the guise of ‘news’ — would actually appear to be nothing more than a thinly veiled attempt to publicly denigrate, intimidate and even harass AXLROSE® (sic) via the use of malicious, on-line communications, with falsehoods and other denigrations generally also accompanying these copyright images in the form of captions,” reads an excerpt of the takedown notice sent by Web Sheriff.
Both Memeburn and our hosting provider have received takedown notices related to the Axl Rose images
Rose’s legal representatives have also sent the takedown notice to Memeburn’s hosting provider, Hetzner, who has called on Memeburn to take down the offending images to “avoid suspension” of the website.
“We have reviewed the complaint and in our opinion it meets all of the procedural requirements set out in Section 77 of the ECT Act,” read an excerpt of the Hetzner email.
“Since removing any content could have a significant impact on you, we understand that in certain situations this may not always be possible. As a hosting company, Hetzner does not adjudicate whether the content is offensive or not. Our role is simply to enforce the take-down request as per the ECT Act,” the provider continues.
“Please respond to this request by 10am Thursday, 24 November 2016 to avoid suspension of your website,” the email concludes.
Burn Media publisher Matthew Buckland says the company is seeking legal advice and are considering the next steps.
“On a strategic level, ordering a takedown of a meme of this nature is short-sighted and silly, playing directly into the hands of those who created it. For the meme creator, who does not have to take responsibility but also does not get credit for such memes, watching takedown notices flow across the internet is the highest possible form of validation. The Streisand Effect kicks in massively when this happens, as everyone wants to know why the fuss. The memes are not especially funny, so they would have died a natural death had they been left well alone.”
From a legal perspective, Goldstuck says that Rose has every right to go after it.
“On a legal level, Axl Rose is fully within his rights. He owns the image, and can decide where and how it is used. Media houses that do not respect such right are sowing the seeds of their own demise, as they are giving anyone the moral right to abuse their own content.”
Goldstuck adds that the memes are offensive, however, as they target someone for their weight.
“If you think Donald Trump’s comments on people’s appearance have been distasteful, the same standard should be applied to comments on anyone else’s appearance. There is little justification for poking fun at someone for their weight,” the analyst concluded.
View the takedown notices below.
View the Memeburn legal team’s response to Hetzner and Axl Rose’s request.
Featured image: Hans Poldoja via Flickr