Why Lane Hartwell is wrong

by Mathew on December 15, 2007 · Comments

According to a piece at Wired, the person who got the “Here Comes Another Bubble” video pulled down from YouTube was photographer Lane Hartwell, who saw one of her images — of Valleywag writer Owen Thomas — pop up in the hilarious video from Richter Scales. Was she flattered? Hardly. She was mad as hell. Ms. Hartwell has apparently had many photos taken and used without permission from her Flickr account, to the point where she has made all her photos private.

In the Wired piece and a previous article on the topic, she says that she contacted the group that made the video to ask them to remove it but got a “cavalier attitude” in response. So she hired a lawyer, who filed a notice with YouTube under the “notice and takedown” provisions of the DMCA, and the video was gone (it initially remained at DailyMotion, but now it’s gone from there too — although it’s still at Metacafe).

In the Wired piece, Ms. Hartwell says that she’s a hard-working photographer, that this is her livelihood, and that people keep taking her photos and using them without attribution. All of of that is totally understandable — but I still think she was wrong to force YouTube to take down the video. Her lawyer says that Richter’s claim the photo is covered by “fair use” provisions is “laughable.” He’s wrong too.

Based on the most recent rulings on the issue, the courts look at four things when they consider copyright infringement and fair use: 1) the “purpose and character” of the infringing material; 2) the nature of the copied material 3) how much of the original work was used and 4) whether the infringement might affect the market for the work. I think it’s pretty obvious that Ms. Hartwell’s claim fails all of these tests.

The Richter Scales video was parody satire — an artistic work of commentary. So it’s covered. The photo was previously published in Wired, so the video is covered. Ms. Hartwell’s shot is on screen for less than a second. Covered. And no reasonable person would conclude that the video would damage the market for her work. Her attitude might, however. Based on her post about why she took her photos off Flickr, I wouldn’t hire her.

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period. Mike Arrington has some thoughts here, including some comments from a copyright lawyer.


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Viewing 101 Comments

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    As a photographer (but not a professional photographer), I can relate to Ms. Hartwell's annoyance at having something she created used without credit. To be fair, the creators of the video would have avoided this whole thing had they simply asked her if they could use the photo. A simple FlickrMail would have been in order.

    However, it seems like she is punishing the creators of this video for the transgressions of others. Had the use of her photo been a single isolated incident, I think she'd have let it pass. From what I've read it seems as though it's happened enough in the past that this teeny tiny transgression finally broke the camel's back and her reaction was way out of proportion.

    What bothers me about this whole thing is that the copyright laws are again being used as a hammer to effectively shut down creativity. Had that been my photo in that video, I'd have loved it, bragged about it, showed it off to everyone. But that's me, and I'm only rarely paid for my photos (usually the quirky ones of the pug). It seems as though there should be some way to allow for some leeway in the form of a clear set of guidelines that can actually be applied without six gazillion lawyers getting involved. The problem with fair use is that it is such a murky and difficult standard to apply, and the courts have looked at it with such a rigid interpretation, that one always has to err on the side of caution.

    Selfishly, I wish she'd withdraw her objections to that video and let them put it back up. I don't see Billy Joel out there calling "copyright violation", and that is probably the murkier question about content re-use.
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    agree completely.
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    She approached them, first, and asked that they remove her photo. They responded in a manner she found to be both offhand and disregarding of her wishes.

    As Owen Thomas has said, there were many other photos of him online the site could have used -- they just grabbed the first one that shows up in a Google search. Used another photo, and rebuilt the video. After first going through the stack, getting the other photo creators and putting up a page with credit at their site. At a minimum.

    This parody was not created for the common good. It was to generate publicity and attention for the group. I'm not going to cut them slack because they made me laugh.
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    Lazy? Perhaps. Uncivil? Probably. But that still doesn't mean it qualifies as copyright infringement and should be taken down under the DMCA. It is fair use -- regardless of whether it was created for the common good or not, and regardless of whether we like the outcome or not.
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    Mathew, I don't you or I understand enough about copyright law to say whether it was or was not a violation. Do we?

    What we should be addressing instead, is perhaps our own opinion of the act, not the law. In my opinion, no matter how hard it was to find all of the photos, the creators of the video should have asked permission of the photographers. Then, they should have given credit, in a web page somewhere if nothing else. Barring that, they lost a lot of my sympathy by not even making the attempt, and then when they were contacted, not being very sympathetic to the photographer.
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    Not to be arrogant, but I think I understand enough about copyright
    law to say whether it was a violation or not -- that's why I wrote the
    post. I will agree that adding credit and/or asking permission is a
    polite approach to take, and should be encouraged.
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    "Not to be arrogant, but I think I understand enough about copyright law to say whether it was a violation or not -- that's why I wrote the post."

    Really? On this issue, it sounds even the lawyers don't agree. It must be comforting to have the strength of your convictions. So...I disagree and feel that the use of the photo was not fair use.
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    Shelly - seriously, if lawyers agreed with each other what would be the point of that? They wouldn't be able to keep charging the crazy rates that they do and rack up the billables.

    The real issue for me is not whether something is legal - legilty rarely has to do with whether or not something is fair. And that truly depends (as the discussion highlights) on one's perspective.

    For me personally? I'm a total fence sitter on this one. I use people's images all the time without their permission. Not because I'm a bad person, but just bc the photo works to demonstrate a point I'm making on my blog and I don't think too much about it. However, if someone emailed me and asked me to take it down? I would most certainly do so.

    This sounds like a case of the arrogant video maker vs. a bruised ego'd photographer - kind of a wrong wrong if you ask me....
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    Leigh, have you ever thought about how good you would make the photographer feel by asking if you could use it? Such a small thing to do, isn't it?

    Or is it that creators of art aren't allowed such?
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    Many art forms have been created by the appropriation of images, sounds etc. from others. Hip hop remixing wouldn't exist today if the kids who were the originators of the movement had to "ask permission" first. Of course, now that it's a money making venture, it's a different story.

    If the bubble video was selling a product I get the 'fairness' issue. In this case, I still think she over reacted in a moment of pissed offness.

    On a related note, I have most recently talked to two photo journalists (one of whom is a VERY sr. photographer affiliated with the associated press) and asked if the amateur photo market and/or digital copy write was impacting their living.

    They said it's the opposite. That what's been happening is that all the amateur photography in the market means that a lot of pretenders have been put out of business and that those that are great at what they do have risen to the top and are making more money than ever. And by the way, neither of the photographers I spoke to, put their professional images up on Flikr.
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    Oh and just to be clear and this debate is a bit emotionally heated - I am not suggesting Lane Isn't talented - I am just suggesting arguments that these type of copy write violations are ruining people's livings in general, is not what I heard from people who work in the industry.
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    I agree on not putting photos on Flickr if you're a pro. It's not really the place.

    I don't think anyone is talking about ruin. I think what we're talking about is standing up for what we believe if right, especially in regards to our creations.

    What Lane has done has adversely impacted on Richter Scales and they could have easily avoided all of this.

    Amie Gillingham made some excellent points in this thread. And though I dislike sending buzz to the weblog, her points are worth a look.

    One point she made was, if the Richter Scales group was a neo-Nazi organization who used the photo to create an anti-Semetic piece, how would people feel then about her reaction, and the people's use of the photo without permission? How much of this is based on the fact that the use is 'popular'?

    A very interesting point I thought.

    As for the pros/amateurs thing, I'm not sure what that has to do with this issue?
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    Typos, I can't type in these little boxes.

    Should be:

    "What Lane has done has _not_ adversely impacted on Richter Scales and they could have easily avoided all of this. "
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    "What we should be addressing instead, is perhaps our own opinion of the act, not the law."

    Shelley, i would like to know your opinion on this. Lets leave law aside for a moment.

    Lets assume that the guy in the photograph says that he would actually like 'his' pic to be in the video.
    What would you say about that?
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    The guy in the picture, Owen Thomas from ValleyWag, pointed out other photos that could have been used, instead. Lane's was used because it was the first to show up in Google image search.

    One would assume, then, that, unless he hired the photographer to take the picture, he would provide another to be used if he wanted his visage in the video. He might have even provided one to use if the video creators had just contacted him, first.

    The 'contact first', seems to me, would have been the smart thing to do.

    Alas, musicians don't have to be smart, only in key.
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    lets continue to keep 'law' out of our discussion.

    assume he has not hired the photographer. he just posed for it.

    do you think owen thomas should be allowed to use that photograph without giving 'credit' or taking 'permission' if he is making a similar video himself?
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    Not without checking with the photographer, and not without giving credit, no.

    I'm having a hard time figuring out where your comments are going. Are you trying to imply that Hartwell doesn't own the image because it's of Thomas? Or that in certain circumstances, this action would be OK?

    Perhaps we should just stick with the existing circumstances and debate them.
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    Let's revise that last sentence to be "singers" -- some musicians have to be very smart or else everything falls apart.
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    Shelley,

    Making video is such a huge pain in the butt. Taking a one-second clip out and re-rendering it while keeping the timing intact is a huge job and one I wouldn't want to undertake. This is why I absolutely loathe video -- I don't have the patience to make one change and have it take six hours to re-render. Not offering that as an excuse as much as an explanation for why they were unlikely to go back and re-cut it.

    Awhile back I called out a fairly prominent blogger on their use of a friend's photo without credit on their blog. I received the same 'disregarding' reply where basically I was told it was fair use and I had no standing to complain. In this case, the photographer is someone who manipulates his images and really makes them look like works of art. They are unique and I can pick them out of a group as being his by the style alone. He deserved credit.

    Rather than giving credit, they pulled the image down. I don't understand that decision either. It was a blog post, for crying out loud. How hard would it have been to edit and insert a link back to his images and his name? Yet they just yanked it.

    Again, it seems like if we had some actual and realistic guidelines a lot of aggravation and bad will could be avoided by all parties.
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    "Making video is such a huge pain in the butt. Taking a one-second clip out and re-rendering it while keeping the timing intact is a huge job and one I wouldn't want to undertake. This is why I absolutely loathe video -- I don't have the patience to make one change and have it take six hours to re-render. Not offering that as an excuse as much as an explanation for why they were unlikely to go back and re-cut it."

    This one doesn't make a lot of sense, Karoli. Every application I know of that creates videos from stills has a way of re-building the application with a click of a button. You can move, add, delete still images.

    I don't know what they used...but exchanging one still picture for another doesn't strike me as being that difficult. And I have used video creation tools, and even dinked around with Flash a couple of times.

    As for guidelines, we have those. We have copyright laws, we also have known rules about plagiarism. Barring that, we have our ethics.
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