In the article, Horowitz and Laksin mention that Beinin:
acquired the copyright for the photo, which previously belonged to someone else and was assigned to him after the fact.According to Horowitz and Laksin, Beinin filed suit for copyright infringement after buying those rights.
Somehow, in the eyes of these two, what Beinin has done is underhanded, though it is perfectly legal and quite in keeping with American copyright tradition. Beinin objected to the use of his face on the cover, but there was nothing he could do about it—because he did not own the copyright for the picture (it was established over a century ago that the subject of a photograph, in most cases, has no rights over the photograph). The only thing that Beinin could do was contact the copyright holder and ask if permission had been granted for use of the photograph. Though Horowitz and Laksin conveniently leave this out, they had not acquired rights to the photograph (if they had, there could be no lawsuit).
I suspect that the copyright holder wasn’t interested in pursuing a case against the publisher, so Beinin offered to buy the rights so that he could do that himself and get his picture off of that cover.
To me, that sounds perfectly legitimate. Yet here is how Horowitz and Laksin characterize his action:
In March, in a move clearly designed to obstruct opinions he didn’t like, Beinin filed suit for copyright infringement against the Center for the Study of Popular Culture (the publisher of FrontPageMag.com).They go on to argue that:
If the claims in the pamphlet had been false, Beinin could have sued the Center for libel. But the claims were true. So he resorted to the copyright gambit. Copyrights, however, were designed to protect commercial values (something the leftist Beinin has spent a political lifetime fighting against). The Beinin picture is in fact worthless. It is not art and the face on it is distinguished only by its insignificance. No one would buy the picture and the fact that the Center published it (at a time it did not belong to Beinin) costs him nothing. Nonetheless, the professor has engaged the machinery of the law in an attempt to make the Center pay for a crime it did not commit because he wants to punish it for an ideological crime a democracy like ours does not recognize.Wow.
Actually, as this is the United States and not England, it’s not likely that Beinin could have successfully sued for libel even if everything in the pamphlet were false—but that’s beside the point here. What Beinin objected to was his face on the cover—and he found a legal means of having it removed when he discovered that the Center for the Study of Popular Culture had not bothered to secure the rights to the picture. The Center had evaded copyright law.
The argument that copyright is “designed to protect commercial values” is a little disingenuous, for what it really does is keep control of the work in the hands of the copyright holder (this includes, of course, control of commercial value, but that’s not the whole of it). One reason for that is that it sidesteps any question of value of the particular work—which is irrelevant to copyright law (though Horowitz and Laksin would have you believe otherwise).
Horowitz and his Center acted illegally if they did not get the rights to use the photograph before placing it on the cover of their pamphlet. Any consequences of that have nothing to do with stifling the expression of opinion. If the Center was unwilling to respect copyright of the picture, it should suffer the consequences, no matter who now owns that copyright.
Horowitz and Laksin are simply trying to obscure the facts of the case, as they do so often.