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New York Times tells us to take down screenshot of its interactive graphic (that we praised)

Updated at 12:22 p.m. ET with latest Times statement.

The New York Times Co. has demanded that we take down a screenshot of an interactive graphic that the Times produced for the recent US presidential election. It appears in a Quartz post, “Our favorite charts of 2012,” which was published on Monday. In an email to Quartz on Monday afternoon, Deborah Beshaw-Farrell of the Times legal department wrote:

While we are delighted that Mr. King found the graphic so admirable, I must point out that The Times owns the copyright in the graphic and the current posting infringes The Times’s rights under U.S. Copyright law.  Accordingly, we hereby demand that you immediately remove the graphic from qz.com and cease and desist from any further use of any New York Times content in any manner whatsoever.

Quartz isn’t planning to remove the screenshot, but it has updated the post to include the words “from The New York Times.” Kevin J. Delaney, editor in chief of Quartz, said in a statement, “Quartz published a reduced-sized screenshot of part of an interactive graphic and linked back to the actual version on NYTimes.com. This is in line with common practice throughout the web, and we believe it is more than covered by fair use protections.”

Asked for comment, Danielle Rhoades Ha, a spokeswoman for the Times, emailed, “While we are flattered by the positive response to our graphic, we note that Quartz’s original piece contained no mention of or credit to The New York Times. We do not allow third parties to take entire works from our site without permission.” Times spokeswoman Eileen Murphy told Poynter, “We simply were asking for proper attribution,” suggesting the company wouldn’t pursue legal action now that attribution has been added.

The Quartz post in question includes 12 charts from a variety of sources, including Bloomberg Businessweek (which thanked us), the National Oceanic and Atmospheric Association, and Quartz itself. The Times graphic is included as a screenshot along with a paragraph of praise.

The interactive version of the graphic, which can only be viewed on the Times website, outlined all the various ways that Barack Obama or Mitt Romney could capture the US presidency. It was widely praised, and screenshots of the graphic can be found on websites ranging from the Poynter Institute to Flowing Data. (Click here to search for it on Google Images.) It’s not clear if anyone else received a takedown notice.

Media companies like the Times and Quartz, which is owned by Atlantic Media Company, toe a delicate line on copyright issues because they both create graphics and report on graphics created by others. The Washington Post’s most popular article on Facebook last year consisted almost entirely of a graphic produced by the Times.

This paradox was eloquently explained in a 2009 interview with Ken Richieri, general counsel of the Times Co., who was copied on the takedown notice sent to Quartz. “We are at the same time creators of content as well as users of other content,” Richieri said in 2009. He continued later in the interview:

I think the big issue online and the pressure publishers are feeling is that publishers online are having a hard time replicating the economics that they saw offline. And many of them are looking at that through the lens of copyright, and I’m not—I think where I would just draw a distinction is I am not so sure that copyright is really the culprit in a lot of this, and I don’t know—that that’s an imperfect lens and an imperfect remedy.

The Times Co. occasionally makes news for copyright and trademark claims that are seen as overly aggressive. Most recently, it forced a Twitter account, @NYTOnIt, to stop using a parody image of the Times’s gothic “T” logo adorned with a beret.

Here is the full text of the takedown letter sent by the Times to Quartz, with some contact information redacted:

December 17, 2012

Mr. Kevin J. Delaney
Editor in Chief
Quartz

Dear Mr. Delaney:

I am writing from the Legal Department of The New York Times Company.

It has been brought to my attention that a New York Times graphic created by Shan Carter, which has been re-titled “Obama’s chances, deconstructed”, has been posted by Ritchie King on the qz.com web site at:  http://qz.com/36149/our-favorite-charts-of-2012/.  Unfortunately, we have no record that permission was obtained to post this graphic.

While we are delighted that Mr. King found the graphic so admirable, I must point out that The Times owns the copyright in the graphic and the current posting infringes The Times’s rights under U.S. Copyright law.  Accordingly, we hereby demand that you immediately remove the graphic from qz.com and cease and desist from any further use of any New York Times content in any manner whatsoever.

We encourage linking and you can find our guidelines for doing so appropriately at http://www.nytimes.com/ref/membercenter/help/linkingfaq.html.  Also, if you wish to post a legal eprint of a New York Times article or graphic on your web site, we invite you to contact Leigh Russo at PARS International [contact information redacted], who will be happy to assist you.

If you have not removed the graphic within three (3) business days of receipt of this letter, we will have no choice but to pursue all available legal remedies.  The demands made herein shall not prejudice or waive any rights or remedies that The Times may have in respect of the subject matter set forth herein, all of which rights and remedies are hereby expressly reserved.

Please feel free to contact me if you have any questions.

Sincerely,

Deborah Beshaw-Farrell
Legal Department
The New York Times Company
620 Eighth Avenue, 18th Floor
New York, NY  10018

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