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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Discussion
for “Why Lane Hartwell is wrong”
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.
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.
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.
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.
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'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.
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.
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.
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.
Actually Brian, I did mention that in the post.
LOL. Guessed I missed that.
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 .
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.