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The Daily Wildcat

The Daily Wildcat

 

    Artist objects to photo use

    Justice for All volunteer and Tucsonan Cheryl Wilson points to the New York Times cover of renowned artist and breast cancer activist Matuschka out to students on the UA Mall yesterday afternoon. She is threatening to file a lawsuit against the non-profit for their anti-abortion exhibit featured on the UA Mall after learning of the use of her image from a UA student.
    Justice for All volunteer and Tucsonan Cheryl Wilson points to the New York Times’ cover of renowned artist and breast cancer activist Matuschka out to students on the UA Mall yesterday afternoon. She is threatening to file a lawsuit against the non-profit for their anti-abortion exhibit featured on the UA Mall after learning of the use of her image from a UA student.

    A renowned artist and breast cancer survivor is threatening to file a lawsuit against Justice for All, a group behind an anti-abortion exhibit featured on the UA Mall, after learning of the unauthorized use of her image from a UA student.

    Joanne Motichka, who goes by the name Matuschka, was contacted by Ann Ranek, a history and anthropology senior.

    Like many students this week Ranek visited the display. Although she was drawn to the exhibit because of the graphic images of aborted fetuses, Ranek said the image that caught her attention the most was not of a fetus – it was a photograph she had seen before.

    The photo she recognized was the cover of the August 15, 1993, issue of the New York Times Magazine featuring the Pulitzer Prize-nominated self-portrait of Matuschka.

    “”I saw the photo of her and I had read the article 13 years ago,”” Ranek said. “”I remember the article and how it had a big effect on me, but to see her image in that context felt so wrong.””

    Ranek said she was so outraged to see the image as a part of an anti-abortion exhibit that she contacted Matuschka – who, upon learning of the reproduction of her image, was furious.

    “”Regardless of your viewpoint, you ought to be able to find a forum for free speech at a public university.””
    – Kecvin R. Kemper, Assistant professor of journal

    “”Here I am, a renowned activist, who has fought for human rights and who has fought for women’s rights and then my famous, Pulitzer Prize-nominated picture is being used in a forum that I completely am appalled by and object to, don’t support, absolutely think is inhumane … it is a very ironic twist,”” Matuschka said.

    A panel of the exhibit, in addition to featuring Matuschka’s image, contains graphic photos of a mastectomy, and states having an abortion “”may do this to your breast.””

    Matuschka’s photograph depicts her bare chest, which underwent a mastectomy as the result of medical incompetence, said Matuschka, who subsequently won a medical malpractice lawsuit.

    “”It was bad enough that I had my breast removed because of a doctor’s error, but then to be linked to threatening women that they will end up with a chest like mine if they have an abortion is just so cruel and misleading,”” Matuschka said.

    After requesting that Justice for All remove her image from their exhibit, Matuschka received an e-mail from Gary S. McCaleb, senior counsel with the Alliance Defense Fund, who said she would receive a response after the matter was evaluated.

    Although she does not have a lawyer, Matuschka hopes one will offer their services as she plans to pursue legal action against Justice for All.

    “”I own the image and I have the right to sell the image to anybody I want for reproduction. But you cannot use my picture, certainly with the [New York Times Magazine] logo either. You cannot reproduce it because it is copyrighted,”” Matuschka said.

    Members of Justice for All disagreed.

    David Lee, the director of the Justice for All exhibit, who was directly involved in the procurement of the images used, said they have the right to use the image under the Doctrine of Fair Use.

    “”We have tried to be careful to let our legal team know exactly everything we do … now you can have guys make mistakes, your legal team can make mistakes, but, in this case, I doubt that we’ve made a mistake,”” Lee said.

    The Doctrine of Fair Use is a section of U.S. copyright law that allows material to be used without permission for purposes that promote free speech, said Douglas Slyvester, a professor of law at the Sandra Day O’Connor College of Law at Arizona State University.

    For something to fall under this doctrine, courts consider the purpose behind the use of the material without permission, whether the material was used without permission for non-commercial or educational use, the amount of material used, and the effects of its use on the potential market value of the property, Slyvester said.

    “”We don’t sell anything,”” Lee said. “”We are here for an educational purpose.””

    While the anti-abortion group’s claim to be protected under the Doctrine of Fair Use regarding Matuschka’s copyrighted image could potentially hold up in court, it may not hold for the New York Times Magazine’s trademarked logo, as a trademark is treated a little differently than a copyright, Slyvester said.

    The New York Times Magazine said the matter is now in their legal department, Matuschka said.

    The New York Times Magazine’s legal department could not be reached for comment.

    The pro-life exhibit, which ended a week-long showing on campus today, is based in Wichita, Kan., and tours the nation visiting college campuses to educate and start discussion among students, said Rebeccah Pedrick, spokeswoman for Justice for All.

    The educational claim that an abortion may lead to breast cancer has been refuted by leading scientists in the field of breast cancer research.

    “”There is not a shred of evidence whatsoever to support that statement,”” said Dr. David Alberts, director of the Arizona Cancer Center and a Regent’s professor in medicine who specializes in breast cancer research.

    The National Institute of Health has a half dozen documented studies that show abortion does not cause breast cancer, Alberts said.

    However, Lee contends the conditional statement is based on a study published in the Journal of the National Cancer Institute.

    “”We don’t put it [the statement linking abortion to breast cancer] up there as an alarmist thing,”” Lee said. “”This is a bona-fide study.””

    Despite the controversy regarding the credibility of their claims, Lee said the pro-life exhibit has a right to free speech.

    “”Regardless of your viewpoint, you ought to be able to find a forum for free speech at a public university,”” said Kevin R. Kemper, an assistant professor of journalism, who teaches Law of the Press, and a law student at the University of Missouri.

    “”I hate censorship. I hate when the people on the right censor the left. I hate when people on the left censor the right.

    “”I hope a copyright issue doesn’t diminish free speech … pro or against,”” Kemper said.

    But ideological and political beliefs aside, if pursued, the use or misuse of the copyrighted image and the trademarked New York Times Magazine logo will ultimately be decided by the court system.

    “”You can sue anybody for anything,”” Lee said.

    “”The question is, can you win?””

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