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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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About the author

Mathew 2431 posts

I'm a Toronto-based senior writer with Fortune magazine, and my favorite things to write about are social technology, media and the evolution of online behavior

137 Responses to “Why Lane Hartwell is wrong”
  1. You’re right and the lawyer is wrong? I didn’t know you were a lawyer. Fancy that.

    Using the photo and _not giving credit_ violates copyright law. There’s not ifs ands or buts about that.

    Only a slime would grab another person’s work and not give them credit for it.

  2. You’re right and the lawyer is wrong? I didn’t know you were a lawyer. Fancy that.

    Using the photo and _not giving credit_ violates copyright law. There’s not ifs ands or buts about that.

    Only a slime would grab another person’s work and not give them credit for it.

  3. Absolutely right, Matthew. I'm happy to see someone stating this.

    @Shelley: it's not “the lawyer”, it's “Ms. Hartwell's lawyer.” He or she has a duty to advocate for Ms. Hartwell's position that the use of the image violates copyright. That doesn't mean the position is correct. It isn't correct.

  4. Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with “giving credit.” It has to do with being forced to license work unless it falls under fair use, which this clearly does.

    Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.

  5. Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with “giving credit.” It has to do with being forced to license work unless it falls under fair use, which this clearly does.

    Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.

  6. Matt, you bring up strong points. One thing that you don't mention is that she went to them before getting a lawyer. That should count and also receive mention in your post so that it doesn't paint her as a wielder of blunt instruments who swings wildly at fellow artists.

  7. Shelly Mike Arrington is a Lawyer and also runs Techcrunch a popluar Web 2.0 blog that profiles the space .

    As for Lane and her IP Lawyer not understanding the Fair Use provisions is another story .

    These days if you put something on the internet or publicly in any form expect it to be ripped ,sliced and diced within hours of it being released with or without your authorization .

    My advice to lane would be Watermark all your photo's before you release them publicly and a private Flickr account wont help you .

  8. 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.

  9. Ms. Hartwell did do one thing right — she took down all her pictures on Flickr. If she had not done that, her 5,000 pictures would be scrutinized for copyright infringement. Under the most draconian interpretation of copyright law (which she relied on to issue the DMCA), if she had aimed her camera at any store sign, any person, any man-made structure, and taken pictures of them without the “permission” of the person or the owner, she could be “violating” copyright laws, not to mention privacy laws. It would be comical if Ms. Hartwell claimed “artistic freedom” in taking photos of anything she darn well pleased and denied the artistic freedom of others.

    I don't know Ms. Hartwell's art works; perhaps she only took pictures of flowers and sunsets, in which case my theory would be moot. Well, we would never know, because Ms. Hartwell had taken all her photos off the Internet, and we wish her well, living in her own island of one.

  10. […] had her lawyer issue a takedown notice to YouTube. Mathew Ingram believes that Ms. Hartwell, and her lawyer, are in the wrong when it comes to […]

  11. I find it offensive that Michael Arrington would interpret this argument as some kind of collusion between women. I now have to consider the gender of the person I support/disagree with, before making a stand? – in case I get thrown a “But since Lane is a woman, it really doesn't matter what she did as far as you are concerned. She's a woman, so she's right.” That remark was uncalled for, Michael. Now I'm stuck, if I support them it's cos I'm a woman, and if I don't, it's because I'm making a point of not being tarred with the “chicks stick together” brush.

  12. I have no idea about copyright law, so I'm not going to comment on that. One thing that I'd like to add here is that I contacted Lane about 8 months ago about using one of her photos on a blog post – http://urltea.com/2dh8. It took all of two minutes to ask for permission to use the photo and she had no problem with it as long as it was properly credited. This whole mess could have been avoided if the Richter Scales had asked for permission in the first place or if they had been more courteous when she contacted them.

  13. I’m not a lawyer, but I think there’s some misunderstanding of copyright and parody in your post.

    Using portions of the original copyrighted work to parody the _original_ work is covered under law (clips of the video from “We didn’t start the fire” for instance). Using someone else’s unrelated work in a parody is not covered.

    I’m personally saddened to see such a fun work pulled, but if the Richter Scales refuse to credit or at least try to work with the sources of their material they deserve a swift end to their 15minutes of fame.

  14. It seems anyone who “supports” Lane Heartwell is giving her a free pass to stay unenlightened by the lessons that Lawrence Lessig has taught us. Has she not heard of Creative Commons or at least know that her actions go against the spirit of the creative community? Why fight this fight? Clearly Brian Solis and Thomas Hawk are enlightened in this way becuase they know the realities of the net. If you don't want people to use your work, don't put it online. Lane Heartwell gets to act like big media by using DMCAs and hiring lawyers? What kind of lesson is this to groups like The Copyright Coalition? It shows them that we, in the creative/remixing/web2.0/hippySF community don't practice what we preach. Someone needs to give her a copy of Free Culture or at least make her watch Lessig's TED presentation. I hope Lane does not go to the Creative Commons party tonight or she will be booed on arrival for being an IP bully. She is really no different than RIAA suing children and grandmothers. The net requires the record companies change their business model or else make everyone criminals. And this lesson should remind Lane that getting mad about occasional lack of attribution just becuase she is a pro photographer is a waste of her energy. Go ahead and hide all of your photos on Flickr as private. Remember, obscurity is a greater threat than piracy.

    Sure, things could have been handled differently, but I think she made them worse. Lane, do it for the love first, and the money secondarily or be upset all the time. The choice is yours.

  15. […] Mathew Ingram and Mike Arrington argue that the Lane is on the wrong side of copyright law with the video take down, which she may be, but the reality is that the web has developed a de facto law of it’s own when it comes to fair use. […]

  16. As a writer/artist myself, and someone that blogs for a creative community, I’ve been noting that artists are grappling with the larger issue that I believe pushed Lane Hartwell to take the kind of actions she did.

    Not that I’d approach Lane’s dilemma the same way – I encourage people to share my work freely far and wide, but I ask that they also circulate my name and link along with the work too. DJ’s remix – and still give credit where credits due.

    Making a living as an artist in modern times isn’t exactly a piece of cake. And it’s not like you make up for it in social standing either. The art makes it all worthwhile. And these days, the relationships around that art make it all worthwhile.

    Let’s consider each piece of “art” to be a “social object” that sparks, and encourages conversation and exchange. Stripped of its creatorship, the viewer cannot hope to have a conversation with the creator, because we won’t even know whom that would be.

    I believe part of the beauty of Web 2.0 is that these kind of exchanges are possible between creator and viewer in a way that’s never been done before. For instance, just the other day an author emailed me because he saw my attribution to his book. He would have been excluded entirely from that exchange with me, and with my audience, if I had “neglected” to mention his name altogether. Now he wouldn’t be the wiser if I hadn’t credited, but I wanted him to know that I was influenced by, informed by, and thus reused his work in my own.

    It was clear from her own words that Lane was frustrated seeing her work widely distributed with no attribution (“credit”). Not only was she excluded around the conversation around the social object (she only stumbled upon it, it was innate to the finished video), she can’t even reap the benefits of PR and word-of-mouth. This is akin to copy and pasting entire paragraphs, and even complete posts, from TechCrunch without any link, without a mention of author or mention of “TechCrunch” as the originator.

    Even if that’s legal, it’s lame.

    If I ran the world, I’d abolish copyright altogether. Creative Commons would be default. But even a CC license acknowledges and continues to include an artist in the derivative works.

  17. Somebody linked me to this post because on the contrary, this is actually being perceived as negative on you, not the other way around. I know it’s hard to see the other side of things, but think about what it looks like from all sides, not just yours. It doesn’t seem like an awful thing that this woman doesn’t want her images used in the video, but because it was made by somebody in the Valley, and obviously taps into some of the Valley personalities, etc., it’s all the sudden not just wrong, but worthy of you trying to suggest she shouldn’t be hired or have a career now. Are you sure that this is serious enough to try to destroy her livlihood or reputation? If so, then why?

    The industry – whether you want to believe it or not – is really becoming put off by the things going on with the blogs. People aren’t saying anything, they’re just not going to them anymore.

  18. copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash

    Matt you make several excellent points, and her case here is so weak it is ridiculous. However I’m torn about the broader issue here – my guess is that her concerns about using her pic really were blown off by guys who have little concern for copyright, and this rampant cavalier attitude is one of the reasons it is hard to make good progress in this area. Solutions? Dunno, though I’m increasingly leaning to Jefferson’s notion that idea “ownership” should not be tolerated and extending this broadly.

  19. […] we are on the record, this might not be the best way to behave on someone else’s blog […]

  20. The problem with threaded comments, sometimes, is you never know where to attach a new thought…

    Another issue on just arbitrarily using a photo, especially a professional’s photo in a work is contractual obligations. I’m don’t consider myself a professional, but I have had photos published in a magazine. One stipulation at one time was that this was the first time–other than the photographer’s own gallery–that the photo was ‘published’.

    For my writing, I’ve had to sign contracts that I will take said writing and re-publish it elsewhere–it is the exclusive domain of the publisher until such time as they release their copyright claims.

    There is more to a professional photograph than the ownership of the photographer and the individual or group that uses it. If the photo was used in a publication, as the one in this video was, this could put the photographer into a difficult situation if the company that hired the photographer (or bought the photograph) suddenly sees their supposedly unique property being played in a video on computers across the world.

    Not all contracts have these stipulations, and Lane Hartwell may not be under contractual obligations–but how would the people know, without asking first?

    So there is more at stake than a second of viewing, and even issues of copyright law. There is also contractual law, laws about model release (ie the model may have signed a release for the photo to be used in such and such, but not in a video blowing bubbles) and putting the photographer into a difficult legal situation because of your own irresponsibility for not doing the decent thing _and checking about use first_.

    This video was nothing more than entertainment and a way for this group to promote themselves. It will be forgotten with the next meme. It is not a significant cultural offering, nor unique research. It does not benefit the common good. Yet the actors behind the video are defended, almost universally. Yet they didn’t ask first, and they didn’t credit and when the photographer protested, she’s been vilified.

    I find this all very confusing. As if our ethics have somehow become twisted with too much social networking juice.

  21. […] all and so is striking back at the wrong target. This won’t help her in the long run, people will remember this instead of the times she is clearly in the right. I had never heard of her before, now I associate […]

  22. I think the main issue here is not whether Lane Hartwell is right legal issues, but the fact that the law basically enables here to get the video taken down without any form of due process.

    There are no lives at stake here, we have all the time in the world to wait for the outcome of normal legal proceedings to decide who’s right and who’s wrong.

    What’s clearly wrong here is the chilling effect of the current copyright laws, and the abuse of that by rights holders such as miss Hartwell. Even if she is legally right, this kind of action is way more unethical and damaging then Richter Scales alleged copyright infringement.

  23. […] had a few thoughts about the recent flap of the “Here Comes Another Bubble” video and artist rights, but I couldn’t write […]

  24. @Mathew: How about I copy and paste your blog entries on another blog called IgnorantTechWriter and not give you credit? I bet you’d be screaming “COPYRIGHT!!!” in a second and have it pulled.

  25. Well said! I’m surprised Lane did this. If her copyright is so regularly abused there are far better targets. Why beat up on good people? Now that she though its time for everyone to move on — again, why beat up on good people?

  26. […] or not Lane invoking the DMCA is legal or not isn’t really what matters here and making it about ‘hurt feelings’ belittles what […]

  27. The argument each right holder must be contacted and permission granted for every image used in a video has made documentary films increasingly time-consuming and expensive to make, in some cases forcing completed documentaries to be abandoned and blocked from release.

    Maybe Lane Hartwell didn’t intend to join this attack on independent cultural producers and historians, but that’s what happens when you bring in lawyers to correct cases of bad manners.

  28. 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

  29. […] or not Lane invoking the DMCA is legal or not isn’t really what matters here and making it about ‘hurt feelings’ belittles what is really […]

  30. […] at Wired magazine. Those are the facts as I see them at the moment. But there is a LOT of opinion out there, with people coming down on both sides. So here’s my opinion to add to the […]

  31. […] this comment sexist? Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has […]

  32. […] YouTube because a photo of hers appeared in the video for less than a second. I wrote about this on the weekend because I thought her response was out of proportion to the harm done, and legally questionable as […]

  33. 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.

  34. 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.

  35. […] to what some have suggested in comments on my previous posts (here and here) I don’t wish Ms. Hartwell any ill will, and I can see how she would be irritated that people […]

  36. […] Arrington–in a series of unusual exchanges with another commenter. blogger Shelley Powers, in the Globe and Mail’s Math…–felt Hartwell was […]

  37. […] Scoble and Mike Arrington did not agree. Arrington goes so far as to call another woman “a fascist” in the conversation on someone else’s blog while lashing out at that blog’s […]

  38. […] a debate that I think I helped in some small way to spark — for better or worse — with this post, which got almost 100 comments, and a more recent […]

  39. […] Oh, and Michael Arrington is also douche. […]

  40. […] might be thinking that the Lane Hartwell incident — the Soap Opera 2.0 of a week or two ago — had pretty well blown over by now. The photographer, whose photo was […]

  41. “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.

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  43. […] are other examples in the email. It’s funny that Lane Hartwell, who apparently doesn’t believe in Fair Use, is employed by a magazine that ripped off things […]

  44. […] made of their content. They clearly do, and rightly so. But as I tried to argue during the whole Lane Hartwell debacle, that interest doesn’t exclude all other interests, including the interests of society as a […]

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