Ellen DeGeneres spoke out on Tuesday in response to criticism after having been photographed having a heckuva good time with noted war criminal George W. Bush at the Dallas Cowboys football game over the weekend.
DeGeneres’s position is that we oughta just be friends, even with people we disagree with! “When I say be kind to one another, I don’t mean only the people who think the same way you do, I mean be kind to everyone.”
A divide quickly opened between the pro- and anti-war-criminal factions of the internet, and it turned out that the pro-war-criminal faction contained a surprising number of Hollywood celebrities.
The anti-war-criminal faction was thus enormously relieved to find this quietly but savagely critical video of DeGeneres making the rounds on Twitter. It was made by Rafael Shimunov, and establishes pretty much all the facts of the case beyond question. I suspect this video alone might have been responsible for the deletion of many of the celebrity tweets of support for DeGeneres seen earlier on Tuesday.
Reports began to appear on Tuesday of mass takedown notices of the video, based on claims of copyright infringement. And as fast as they could be taken down, the anti-war-criminal faction of Twitter put the video back up again, until it had been seen hundreds of thousands of times, in a classic Streisand Effect crescendo of warranted, but unwanted, attention.
The video is clearly protected speech, as experts such as Brandon Butler, copyright lawyer and Director of Information Policy at UVA’s Taper Library, quickly noted:
We got a chance to catch up with Rafael Shimunov this afternoon over the phone.
The following interview has been edited for brevity and clarity.
When did you make the video, what motivated you, what happened?
So basically I just got really upset… I’d thought her response would be an apology. And then it occurred to me that she was standing in front of her set, in blue, like, a single color. Like a natural green screen, but just blue. So I could put any image behind her, to make the point.
So then I had to go through all of the Iraq War images, and choose, kind of… I still can’t get a lot of those images out of my head, images I’ve never seen before, that I was searching through but didn’t select, because they would just have been flagged as graphic. There was a lot of imagery that I couldn’t use. I had to censor myself, ironically, because if I’d chosen those images, they wouldn’t have been seen: Modern images of the aftereffects, of children being born today, with fatal deformities and things like that, because of the war.
I had a feeling that they might make some kind of copyright claim, and I wanted it to be very obvious that, you know—that it was edited. The most interesting responses I got were from people who were confused; a certain proportion of viewers actually didn’t realize I’d changed the background at all, they just thought I was reposting Ellen’s thing. They’re so desensitized to these kinds of images that they watched that whole video without even realizing what the background was…
That was shocking to me. There were comments on Twitter like, “How can you post that, her apology is bullshit,” and I’m like wait—look at the background.
Oh, it took me probably a dozen frames to realize what was going on because I was so incensed by the thing itself that… it was mesmerizing to me. The one frame that people are reproducing so much is where Ellen is mimicking the pose of the Abu Ghraib electrocution image, standing in front of it, which I would imagine is maybe the most well-known image of the torture scandal, if not the whole war.
I can’t even quite fathom the significance of this superimposed pose. Please comment on figuring that out for me.
That actually happened just randomly.
I was randomly putting images in. And when I put that one in, that was the background while she was doing that pose, and I pushed it a little to the left, to the right, to make it match up, once I was hit with it. But it wasn’t like, a planned thing.
Sometimes when you do this work, I don’t know why. When you’re doing something with meaning, I believe, sometimes these things happen, things just fall into place.
Versus like… it’s funny, when I’m doing something that I don’t… believe in, for work?
It’s like this struggle, and you have to—everything’s going wrong, and nothing’s making sense. And then when you’re doing something you believe in, sometimes, these things just happen to fall in place, and that wasn’t even like—a plan, it just happened that way.
Amazing. I so agree with you. I will wager you that that particular image is going to last a long, long while.
Did you know it was a great thing you’d made, when you were done?
No… like I’ve done things that were viral, in the past?
Like I uncovered when the White House had doctored that video of the CNN reporter Jim Acosta to suggest he’d assaulted that woman, and they’d sped up that video, and I showed two screens and proved that, and they used it in the CNN tape, and he got reinstated.
That was you?!
[It’s been seen more than ten million times.]
So when I saw this I thought, no, this is not exploding. And then they began to take it down… and then it just started to explode.
How many hours did this take, and how was the takedown communicated to you?
It wasn’t. So normally… I do social media for nonprofits, and progressive campaigns. And normally, when you accidentally have a clip or something that sounds like for example the Star Wars theme, you’ll get an instant notice by email from Twitter, notifying you of the takedown; and that email always gives you an opportunity to appeal, under the Copyright Act. The fair use provisions protect commentary and transformative works, so it gives you a chance to appeal and make a counterclaim, or as they call it a counternotification.
I’ve received many of these notices [from Twitter], some of them valid, some of them not. But this is the first time ever I didn’t receive the notice, and haven’t had the chance to appeal.
This is a big deal because the source material had already created a big schism in the public conscience; there’s all these famous people who came out and celebrated this enraging response from Ellen DeGeneres.
It’s like a pitched battle between people who remember what happened in 2003, and these insanely ignorant people who are trying to make some kind of You Go Girl trip out of this thing.
By the way, you know… this is protected speech for sure, I think. I don’t know if you’ve read about this, but in Hustler v. Falwell…
Yeah, I heard of that.
I mean William Rehnquist decided in favor of protecting Hustler, so you’re like… really golden on the First Amendment side, I suspect.
What else do you want people to know about what happened? To think about it?
People are actually like messaging me, who have a few hundred followers on Twitter, saying things like, “Wow, I never thought I could be powerful before. I always thought like you all with the blue checks, and this and that, and whatever you guys want. But this is something we did.
“We just, like… when [Twitter] took down that video, a bunch of us got together and kept putting it up, faster than they could take them down, and then they gave up, basically. And we unerased a million Iraqis.”
And others are saying, “Why don’t we come back with two more videos? One with a Katrina background and one with all the people who were LGBTQ, who took their own lives because of these policies?”
If I reupload it myself, I can forfeit my whole account; I have to wait for the dispute to be settled before I can repost it myself, so all these people are reposting it everywhere.
Update, 10/12/19: Rafael has posted a petition requesting Vijaya Gadde, Legal, Policy and Trust & Safety Lead at Twitter, to reinstate the takedowns. We will update as the situation develops.