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 2406 posts

I'm a Toronto-based former senior writer with Gigaom 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.

    • So just because a lawyer says it, it has to be right, Shelley? I’m not sure even a lawyer would agree with that one.

      As for giving credit, the guys at Richter Scales have said that they regret not giving credit for the photos and video clips, and they were doing just that when the video was removed.

      In any case, using a photo in the way they did is covered by fair use regardless of whether credit is given or not. It’s a nice thing to do, but it isn’t legally required for fair use.

      • Mathew, the lawyer was Terry Gross, a leading IP lawyer. Do you still want to say her lawyer was wrong?

        His comment is that the video wasn’t parodying Hartwell’s work, and therefore claiming fair use under parody is invalid.

        • Shelley, I don’t care who her lawyer is, I still think he’s wrong.
          And I think plenty of other lawyers and intellectual property experts
          would agree with me — and I’m not just thinking of those who work for
          the Electronic Frontier Foundation.

          A work of parody doesn’t have to be parodying the original work in
          order to qualify under fair use. The court takes into account the
          nature of the entire work, not just whether the copyrighted content is
          the actual target of the satire.

        • Shelley, I don’t care who her lawyer is, I still think he’s wrong.
          And I think plenty of other lawyers and intellectual property experts
          would agree with me — and I’m not just thinking of those who work for
          the Electronic Frontier Foundation.

          A work of parody doesn’t have to be parodying the original work in
          order to qualify under fair use. The court takes into account the
          nature of the entire work, not just whether the copyrighted content is
          the actual target of the satire.

      • Mathew, the lawyer was Terry Gross, a leading IP lawyer. Do you still want to say her lawyer was wrong?

        His comment is that the video wasn’t parodying Hartwell’s work, and therefore claiming fair use under parody is invalid.

    • So just because a lawyer says it, it has to be right, Shelley? I’m not sure even a lawyer would agree with that one.

      As for giving credit, the guys at Richter Scales have said that they regret not giving credit for the photos and video clips, and they were doing just that when the video was removed.

      In any case, using a photo in the way they did is covered by fair use regardless of whether credit is given or not. It’s a nice thing to do, but it isn’t legally required for fair use.

  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.

    • Thomas, you're a lawyer? It's alright, then, for someone to use another person's work without giving them credit?

      • Shelley – I am a lawyer, actually, and you continue to be wrong. It is ok to use someone's work without a license (you say “credit” but it shows that you don't understand copyright law) as long as it falls under what is called Fair Use. Lane is in the wrong here, by using the DMCA improperly. And you are wrong to blindly support her.

  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.

    • So, it’s OK to condone plagiarism, as long as we commit acts of plagiarism in the name of art?

      If you’re a lawyer familiar with copyright law, and copyright law doesn’t doesn’t require giving photo credit, I have to assume you’re right on the legality. However, it doesn’t make it ethically or morally right. Especially as Hartwell did contact the group, first, before bringing in a lawyer, and they blew her off.

      As for the woman crack, what a crock. Does this mean that you’re siding with Mathew because he’s a guy, and I’m a woman who dares disagree with him?

      I wrote on this, including your comment, Michael. But unlike some people, I actually linked to Mathew’s post, and gave him credit for the writing. And you, for yours.

      • Shelley, I think you are right that giving credit — while not legally
        required — is the ethical thing to do, and that’s why I mentioned the
        post where Richter Scales said they regretted not giving credit, and
        were in fact in the process of giving credit when the video was
        pulled.

        As for their response when she approached them, I don’t know if they
        “blew her off,” but I wouldn’t blame them for arguing that it’s fair
        use and therefore doesn’t require her permission.

      • Shelley, I think you are right that giving credit — while not legally
        required — is the ethical thing to do, and that’s why I mentioned the
        post where Richter Scales said they regretted not giving credit, and
        were in fact in the process of giving credit when the video was
        pulled.

        As for their response when she approached them, I don’t know if they
        “blew her off,” but I wouldn’t blame them for arguing that it’s fair
        use and therefore doesn’t require her permission.

    • So, it’s OK to condone plagiarism, as long as we commit acts of plagiarism in the name of art?

      If you’re a lawyer familiar with copyright law, and copyright law doesn’t doesn’t require giving photo credit, I have to assume you’re right on the legality. However, it doesn’t make it ethically or morally right. Especially as Hartwell did contact the group, first, before bringing in a lawyer, and they blew her off.

      As for the woman crack, what a crock. Does this mean that you’re siding with Mathew because he’s a guy, and I’m a woman who dares disagree with him?

      I wrote on this, including your comment, Michael. But unlike some people, I actually linked to Mathew’s post, and gave him credit for the writing. And you, for yours.

    • Thanks for the support, Mike — but let’s not bring Lane being a woman
      into the discussion because a) I don’t think it’s relevant, and b)
      Shelley hasn’t brought it up. I’d like to keep this focused on the
      copyright issue.

      • actually, Mathew, I’ll do whatever the fuck I feel like, and you can decide to censor comments or not.

        Shelley is and always has been a fascist around these issues. If you’re on her team (poliically) she’ll support you to the death. Not on her team and she’ll find a way to take you out at the knees. People ignore her rather than call her on it.

        • So if you have a beef with Shelley, why use my comments — on a
          completely unrelated topic — to take it up with her? I don’t see why
          my blog and anyone reading it has to be dragged into whatever past
          issues you and Shelley have. I’m not going to censor your comment,
          but I fail to see why you felt it necessary to bring sexism into it
          when Shelley never even mentioned anything about that aspect of it.

          • oh please. sucking up to Shelley will get you nowhere.

          • oh please. sucking up to Shelley will get you nowhere.

          • Mike, I’m not trying to suck up to anyone — I’m just trying to have a
            civil discussion

          • Mike, I’m not trying to suck up to anyone — I’m just trying to have a
            civil discussion

          • I’d rather you be not civil, if civil really just means condescending and telling me what opinions I’m allowed to have and not have.

            There’s no such thing as right and wrong any more. It’s just who’s team you’re on. Then you defend your team no matter what they do.

          • I’d rather you be not civil, if civil really just means condescending and telling me what opinions I’m allowed to have and not have.

            There’s no such thing as right and wrong any more. It’s just who’s team you’re on. Then you defend your team no matter what they do.

          • I’m not trying to be condescending — and I’m not trying to tell you
            what opinions you’re allowed to have or not have. I’m asking you to
            stick to the topic if you’re commenting on a post of mine, that’s all.

          • Not wanting to overcome Mathew’s comments on unrelated topics, may I quote this comment of yours in a post of mine?

          • You’re asking permission to *quote* someone? Wow, you really are clueless.

        • So if you have a beef with Shelley, why use my comments — on a
          completely unrelated topic — to take it up with her? I don’t see why
          my blog and anyone reading it has to be dragged into whatever past
          issues you and Shelley have. I’m not going to censor your comment,
          but I fail to see why you felt it necessary to bring sexism into it
          when Shelley never even mentioned anything about that aspect of it.

        • Not wanting to hijack Mathew’s comments here, but I’m a woman and Shelley disagrees with me frequently, and has no compunction about calling me out in her comments, on her weblog and in my comments. I guess that means I’m not on “the team”?

          Hey Shelley, what gives? LOL.

        • Not wanting to hijack Mathew’s comments here, but I’m a woman and Shelley disagrees with me frequently, and has no compunction about calling me out in her comments, on her weblog and in my comments. I guess that means I’m not on “the team”?

          Hey Shelley, what gives? LOL.

        • Someone Please tell me that’s not actually Mike talking this crap.

          Jesus Mike, it sounds like you have Winer’s his hand up your ass moving your lips on the “shelley the voice for, by, and about women” thing. Not sure if you know that Shelley is also a professional photographer who has an obvious reason to be discussing the ramifications of photos being pulled and used in others’ work without attribution.

          I saw the video, which was beyond lame, before this whole dust-up.

          Come on, man.

      • actually, Mathew, I’ll do whatever the fuck I feel like, and you can decide to censor comments or not.

        Shelley is and always has been a fascist around these issues. If you’re on her team (poliically) she’ll support you to the death. Not on her team and she’ll find a way to take you out at the knees. People ignore her rather than call her on it.

    • Thanks for the support, Mike — but let’s not bring Lane being a woman
      into the discussion because a) I don’t think it’s relevant, and b)
      Shelley hasn’t brought it up. I’d like to keep this focused on the
      copyright issue.

    • Um…i agreed with you Michael up until that lame “u think that just cuz she’s a woman” comment – what up with that??

    • Mike, how is Lane protecting her intellectual property any different from you killing techcrush?
      http://tinyurl.com/yuxyol

      Seems like you’re both a sexist AND a hypocrite.

    • 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.

  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 .

    • “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 .”

      I have to ask: what makes you think I don't know Arrington, and leaving that aside, that he's more proficient in IP law than a practicing lawyer who specializes in IP?

      “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”

      I think this attitude will eventually harm more than help. If we have people hesitate to put their work online because it will be sliced, diced, and used any which way, we may end up losing the ability to see works of art, photos, even writing.

      The internet has not done away with courtesy and respect, has it? Or has this all become nothing more than a den of thieves?

      • “” “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”

        I think this attitude will eventually harm more than help. If we have people hesitate to put their work online because it will be sliced, diced, and used any which way, we may end up losing the ability to see works of art, photos, even writing.””

        This is why I suggested that Lane Hartwell watermarks every photot she publishes on the internet then she creates her own attribution system .

  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.

    • agree completely.

    • 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.

      • 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.

        • 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.

          • 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.

          • “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.

          • 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….

          • 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?

          • 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.

          • 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.

          • 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?

          • 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. “

          • “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?

          • 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.

          • 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?

          • 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.

          • Let's revise that last sentence to be “singers” — some musicians have to be very smart or else everything falls apart.

      • 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.

        • “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.

          • Shelley,

            The guidelines are clearly unclear. Look at this debate! Yes, all of this could have probably been avoided by giving credit or asking permission, but beyond that, there is a clear disagreement about whether use of the image was permitted under fair use. Mathew says it was; others say it wasn't, and the end result is lose-lose for everyone.

            I'm unwilling to risk having to go to court and argue that my use of an image for less than a second was permitted under fair use. I'd just pull it off and move on.

            Hypothetically, what if credit had been given for the image and the creators then received a bill for use of the image in their video? And let's say for the sake of argument that they made money via advertising or traffic to their site and the image owner then demanded a 10% cut of the income as compensation for use of the image?

            On the other hand, not giving credit doesn't open that door.

            Hypothetically again, what if they had asked permission to use it and received it, the video had gone wildly viral, made money, and the creator then came back and requested compensation in excess of standard rates?

            Both situations would have ended up being litigated at a huge cost to everyone.

            This is my argument for bright-line standards. It's too open to challenge, too open to interpretation.

            And from the hypotheticals, you can see that using the ethical approach doesn't guarantee that all parties end up satisfied. Both of those hypotheticals have roots in real cases.

  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.

    • “…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.”

      I'm not supporting her, but if she took the photos from a public area like the street or sidewalk then she doesn't need permission.

      • Funny you should mention. I was on a sidewalk yesterday, saw a neon store sign that was beautifully constructed, so I took out my camcorder and started to film, until a private security guard came out and told me his employer does not allow any picture-taking.

        I knew I was perfectly legal to film from the sidewalk, but did not argue with him because he was built like a pro wrestler and could take me out with one single shove.

        My point was that Ms. Hartwell is granted a lot of elbow room to exercise her rights as a creative artist. As a photographer, Ms. Hartwell knows full well that it only takes someone in a bad mood to challenge her rights to take pictures, and yet sadly she was unable to be more tolerant to a fellow creative artist, and had to bring in a lawyer (her own private security, so to speak) and a big hammer called “DMCA”.

        DMCA is a serious deal. What she and her lawyer did is akin to making a citizen's arrest of someone who drives 56 miles per hour in a 55-mile zone.

        I feel sorry for Ms. Hartwell. She clearly did not understand the power of DMCA (she sure does now), and had the bad luck of consulting an attorney who should have advised her against issuing DMCA, which is the second most hated acronym in the online world, behind RIAA.

  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.

    • Welcome to Web 2.0 Laruel.

      • Sexism 2.0 more like……(but seriously, how depressing is the personalization of an argument around someone's gender? I guess now all we have to do is wait for someone to up the argument sophistication level and start calling someone else gay or a retard)

        • It is Very Depressing. The passively aggressive get to look like angels as they continue to invalidate any points made by others, casting dissenting voices as “negative” or “woman” or “whining” [pick your term]. Those others — the ones actually exhibiting critical thought — then get driven out of the discussion, and driven nearly crazy.

          Next, when the “negative” “women” “whiners” are brave enough to call the passive aggressive power elite on their B.S., they’re labeled as mean for launching ad hominem attacks.

          Those who do the invalidating score another win. The minions kiss their asses. And the beat goes on.

          • Jeneane, one person made a reference to this as having something to do
            with women. That was totally off topic, and I think everyone sees it
            as such.

            You seem to be trying to conflate any disagreement with anyone’s
            position here, regardless of their sex, with some kind of overt or
            covert sexist impulse — as though only women have ever been
            passive-aggressively disagreed with or had their points invalidated.

            I can tell you from personal experience that isn’t the case, and I
            think you’re distorting the point here by trying to make it so. Let’s
            not bring the whole universe of man vs. woman since the dawn of the
            Internet into the discussion, please.

          • 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.

  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.

    • Sam, I realize that I used the term “parody” when I should have used
      the term “satire,” but that’s all I’m guilty of. Using parody as part
      of the fair use defence does require that the work be a parody of the
      original copyrighted content — but works of satire, in which
      copyrighted content is used to make fun of something else, is also
      covered in many cases by the fair use defence.

      • 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.

  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.

    • Creative Commons is not synonymous with unregulated sharing of content. From the CC about page (h ttp://creativecommons.org/about/ ):

      “Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work — a “some rights reserved” copyright.”

      If I understand your comment (correct me if I'm wrong), you're saying that we should just ignore the various versions of copyright that CC clearly defines and just assume that if it's on the internet, it's free for the taking.

      Maybe you're the one who should stay away from that Creative Commons party.

      • I use a variety of licenses on my work, both very open Creative Commons one and very limited All Rights Reserved ones. It's not impossible.

        I agree with Lane, and had no idea I was a woman, either. /smirk

  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.

    • Typos…wish you had editing.

      “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.”

      should be

      “For my writing, I’ve had to sign contracts that I will _not_ 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.”

  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.

    • I agree, Rick. That’s one of the things that the DMCA’s “notice and
      takedown” rules have created. Take it down first and ask questions
      later.

      • Regardless of copyright, they did violate YouTube rules, which state that each photo in a slideshow has to have permission from the copyright holder of the photo. She, as a copyright holder, filed a complaint.

        Or is it only Sony and Disney that can file copyright complaints?

    • So, you want to teach your kids that it’s ok to steal but not protect your property?

      What first amendment rights were violated?

      Who was tortured?

      What social good was curtailed by this action?

      Perhaps you need to get a sense of perspective on this.

      • Shelley, intellectual property is a misnomer — as far as the law is concerned, intellectual property is not the same as physical property, nor should it be treated as such.

        Using a photo in the way Richter Scales did is not “theft,” despite what Lane Hartwell or anyone else says, and the courts don’t treat it that way for a reason. And that means the rights of “property owners” like Lane to police their own content are restricted.

        Video makers like Richter Scales — or anyone else, for that matter — don’t have to justify their actions by proving some larger social good, thank God.

        • Mathew, I keep coming back, because this to be very disquieting.

          It’s almost as if people asserting any form of ownership in their craft are seen as somehow stealing from the common good by doing so. I can’t help thinking this will, eventually, discourage more than it will encourage people to put their craft online.

          Richter Scales are not heroes in this story. They were sloppy at best, indifferent to the concerns of others at worst.

          Tell me something: shouldn’t Richter Scales have released this video without giving themselves credit, if they deemed this was OK for others work they included? What’s good for others, is also good for themselves?

          I liked the video. I liked several statements made in the video. Got a giggle. But it doesn’t change the fact that they really should have asked first, and Lane is not ‘evil’ for getting pissed.

          I think you and I will have to disagree on this one. I was wrong on the copyright/credit thing, but I still don’t think this was fair use (or at, least not as clearly defined). And I don’t think Lane deserves to ‘not get hired’ because she got pissed.

          It sounds like the video will live again and they worked out an amicable resolution. Just another weekend memeblast.

          • Shelley, I’ve already agreed that Richter Scales could have handled it
            better — and hopefully they have worked out a compromise, as Lane
            Hartwell suggests on her blog. But I think it’s unfair to say that I
            or anyone else here is suggesting people shouldn’t be allowed to
            assert ownership of their content.

            The question is whether that “ownership” is absolute, and whether it
            ought to extend absolutely in all directions, to any use of their work
            in any form. I would argue that it isn’t and it shouldn’t, and that’s
            why we have copyright law and “fair use” principles in the first
            place.

            If using a photo for less than second — one that has already been
            published, and is on a public photo-sharing site — doesn’t qualify as
            fair use, then what does? Should it only apply if Richter Scales were
            making a video for their social-media course at school? Does it not
            apply because they are a commercial entity of some kind? Or just
            because they were thoughtless and didn’t ask permission?

          • Use for one second: Good point, but as it would have been just as easy to substitute another photo that they had permission to use without affecting the nature of their work, so it isn’t a very strong point. This is, in fact, part of the difference between satire and parody. Satire is a weaker fair use defense.

            Already been published: Is this supposed to be an argument about not affecting the market for the work? If so, it’s not a very strong argument.

            On a public photo-sharing site: Does marking a photo on Flickr as ‘All rights reserved’ have no effect whatsoever?

          • 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.

  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.

    • If you put it on there for a split second, as part of a video that
      included other blogs as well, I would probably thank you for it. In
      any case, what you’re suggesting happens all the time, and I do what I
      always do — absolutely nothing.

  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

    • 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

      • 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.

        • 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).

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

          • 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.

  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.

    • 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.

    • 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.

  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.

    • 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.

      • 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

  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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