Why Lane Hartwell is wrong

by Mathew on December 15, 2007 · 137 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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  • johm
  • http://allied.blogspot.com jeneane

    Mathew, First of all, I used those three words (women being only ONE of them) purposely. It’s NOT just women. It’s anyone exhibiting a dissenting opinion, or critical thought that the loudest voices tend to dismiss.

    Secondly, my opinion on Mike’s tongue lashing, which is what I shared here, is informed by reading more than one blog on this situation, six years in this environment, and excuse me, but it IS a valid point. Go read the techcrunch comments and then come back here and tell me we don’t have a problem, Houston.

    I’m responding as I see fit to the others asking “What Gives?!” Please don’t lecture me for answering them honestly.

  • http://allied.blogspot.com jeneane

    I think that over the last several years, the transition from calling what we do (or are putting) online “writing” or “blogging” or “photography” or “music” to “Generating Content” has had a not-so-subtle effect on our notions of ownership and value.

  • http://burningbird.net Shelley

    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?

  • http://burningbird.net Shelley

    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. “

  • E. Fregoisi

    oh boy. such pompous tut-tutting about how the terrible ms. hartwell has spoked all the fun. well, fact remains that content creators should have a right to how their work gets used. this wasn’t an incident decades after she snapped that photo so the creative commons claim does not apply. your link to arrington is not instructive. he adds nothing to the narrative other than snark and a half-assed summation of a conversation he supposedly had with a copyright attorney. if the video’s authors want to include hartwell’s work, the should first contact her for prior permission – or set up a payment schedule.

    this is all less complicated that some of you would suggest

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  • http://www.drumsnwhistles.com/ Karoli

    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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  • http://craigslistcriticism.blogspot.com Delia

    re: http://creativecommons.org/about/license/

    Mathew,

    I don't get it… what's the big deal with giving someone *credit* for having produced something original, such as a photograph? Why *shouldn't* credit be given? Who's harmed by giving credit? Even the Creative Commons retains this right… and it does give away quite a few rights that could be legally retained, just not THIS one… it apparently regards it as not harmful and fundamental.

    Delia

  • http://www.mathewingram.com/work mathewi

    Delia, I'm not saying there's anything wrong with giving someone
    credit — I think it's great, and if someone feels like doing that
    they should go right ahead and do it. I'm just saying it's not
    legally required, that's all. It's not a right in that sense.

  • http://craigslistcriticism.blogspot.com Delia

    It seems to me that it IS legally required (unless the people running the CC License are completely ignorant of the law… and I seriously doubt that). I mean, they devised a way for copyright holders to give away some LEGAL rights so that the “creative commons” (aka. the society at large) would be better off. The right of attribution is NOT among those rights (just check out the link I gave).

  • Ket

    I think Shelley is probably right that this does not fall under fair use. The satire was not of the photo; the photo was grabbed in service of a satire of something else.

    The giving of credit is not relevant though in determining copyright infringement.

    Some appellate copyright case law would be helpful. Any citations, guys? For an attorney (although obviously not an IP attorney), Michael Arrington seems surprisingly unable to use LexisNexis.

  • http://www.mathewingram.com/work mathewi

    It's not required by copyright law, but it may be by Creative Commons
    licensing rules. The two aren't mutually inclusive.

  • http://www.mathewingram.com/work mathewi

    Ket, the satire doesn't have to involve the photo specifically — it's
    enough that the satire is about something that involves the subject of
    the photo. For protection by the parody defense, it would have to be
    a parody of the photo itself, but satire is also protected commentary
    under most interpretations of fair use.

  • http://craigslistcriticism.blogspot.com Delia

    Hi Ket!

    re:” The giving of credit is not relevant though in determining copyright infringement.”

    yet this seems to be what created the problem (I doubt we would have heard anything of this if attribution would have been given) D.

  • http://craigslistcriticism.blogspot.com Delia

    Hmmm… I don’t see how the Creative Commons (or any other such organization) could possibly give EXTRA rights to copyright owners that they do not already have by law. The whole idea behind CC is to *give away* SOME rights copyright owners legally *have* (while preserving some of them, such as attribution, which appears to be just basic respect). D.

  • dude

    You are wrong:

    1) the “purpose and character” of the infringing material
    The video is a promotion for The Richter Scales, a for-profit entity, not a nonprofit educational institution. Works of art incorporating copyrighted works in their entirety are NOT protected under fair use (see Rogers vs. Koons and Sonnabend Gallery – the court found that Koons use of “Puppies” was not covered by Fair Use)

    2) the nature of the copied material
    The nature of the copied material was a photograph which is protected under US Copyright law.

    3) how much of the original work was used
    The photograph was used in it's entirety – it was not cropped or altered in any way rom it's original form.

    4) whether the infringement might affect the market for the work.
    By infringing on the copyright of the photographer, the Richter Scales effectively reduced the market value of the photograph to $0.

    Additionally, the video is a parody of the Web 2.0 phenomenon, but not of Hartwells' work and thus cannot be construed as a parody usage of said work.

  • http://www.mathewingram.com/work mathewi

    I'm not sure why I'm even bothering, but you're completely wrong on all counts.

    1) Whether it's for profit or not is irrelevant, as several cases have
    established.

    2) Not relevant. Of course it's copyrighted — that's the whole point
    of fair use.

    3) Also not relevant — photos are almost always used in their entirety.

    4) Not relevant — the work was previously published.

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  • http://jeremiahjacobs.com jeremiah

    Actually Mathewi, you're wrong……kind of. Your point-by-point refutation is not relevant…..the poster was illuminated the litmus test of copyright infringement…which are all of the points taken as a whole. That you feel each one is somehow individually irrelevant is beside the point: they're taken as a whole when being considered by a court.

    Here's a more nuanced explanation direct from the US Copyright office:

    http://www.copyright.gov/fls/fl102.html

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  • D. Ross Cameron

    “Based on her post about why she took her photos off Flickr, I wouldn’t hire her.”

    Based on your commentary here, and your apparently flagrant disregard for copyright, I would hope that she wouldn't work for you if offered a job.

  • D. Ross Cameron

    So, Mr. Arrington, you establish yourself in the brevity of a single post as being confused about the actual nature of “fair use,” and a misogynist besides.

    Your arrogance troubles me.

  • Lefty

    Fair Use is not a slam dunk, and particularly not in the case of photographs, music or video, which–unlike the text works which copyright law was originally intended to protect–can't be easily “edited” or “summarized”: it's pretty much 100% or nothing. There's a possibility that the video maker could claim that his use was de minimus, since the photo appears for a very short period.

    People seem to think that all one has to do in a copyright dispute is shout “Fair Use For the Win!!11!!”, but it doesn't work that way. You can assert Fair Use, but unless a judge agrees, it's just an assertion.

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