Lane Hartwell: Still wrong on fair use

by Mathew on December 17, 2007 · 29 comments

It’s nice to hear that photographer Lane Hartwell is working things out with the band Richter Scales, after filing a DMCA takedown notice and having their video removed from 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 well, and I’m pleased to hear from at least one legal expert that I got it right in my original post.

Jason Schultz, who writes a blog called Law Geek — and who also describes himself as a fan of Lane Hartwell’s — has posted his analysis of what happened, and comes to virtually the exact same conclusion I did (for which I got a vast amount of flak in the 80 or so comments on my post, and on other people’s blogs as well). He says that while asking for permission is nice, it is not required when something qualifies as fair use, which he says the use of Lane’s photo does.

While the use of the photo might be seen as impacting Lane’s livelihood, Jason says that it is clearly “transformative,” and therefore is covered, and the video is clearly meant as commentary on the world that her photo is a part of, and therefore it is likely covered. The photo is also a published work, which would likely weigh in favour of fair use. Schultz also makes the same point that I did, which is that copyright:

“is and always has been a balance between the rights of original creators and the rights of the public and subsequent creators to use copyrighted material. No one person ever has absolute rights under the law to control every use of a copyrighted work.”

In the comments on my original post, and since then on lots of other blogs — including Shelley’s at Burningbird and Tara Hunt’s at Horse Pig Cow — the point is repeatedly made that I am missing the real point, which is that it was rude and uncaring of Richter Scales to not ask for permission and give Lane Hartwell credit. Tara says if people respond that way, creative people won’t allow their works to be on the Internet.

Maybe it was rude. But that doesn’t justify getting the video pulled with a DMCA notice. Richter Scales might have been wrong, but so was Lane Hartwell — you don’t go whipping out the DMCA just because someone was rude to you. And if people continue to do that, then creative people won’t create things any more for fear of prosecution. Lane’s full statement is here, and she is still wrong.

Note:

I’m not going to comment on the whole sub-drama involving a comment made by Mike Arrington on my original post, which referred to Shelley as having a sexist agenda. It was irrelevant then and it’s still irrelevant now.

  • http://burningbird.net Shelley

    I don't think you're reading what we wrote, Mathew. We're not saying you're not getting the point. For me, at least, I'm saying I disagree with you.

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

    Disagree that it qualifies as fair use, or disagree that fair use is
    the most relevant issue?

  • http://leighhimel.blogspot.com leigh

    Not to beat a dead horse Mathew but do you think you're only saying that because you have only one “T” in Mathew when most Matthew's have two?

  • http://burningbird.net Shelley

    Both, really.

    Your arguments are good, as is your lawyer friends. Of course, we know that Lane's lawyer disagrees. In a court of law, where this won't end up, of course, another issue that will most likely come up is how important was Lane's photo to the whole?

    Could the satire have been created without it? Would it have been irreparably damaged if the photo was removed and replaced?

    As for damaging Lane's financial state with the use of the photo, without understanding her contract with the employer who purchased the photo, we don't know for sure. If the video people had actually used the photo in place within the publication, then it would be more between the publication and the video folks.

    But by using it directly, they could have put her into a difficult position with her customer.

    I am not a lawyer, but one thing I know is that law is not black & white. For every argument you could provide, chances are Lane's lawyer could provide another, equally good or better. Then a lot of this will boil down to: how important is the photo to the whole? I think in this case, a judge hearing that the photo was grabbed randomly, and could be easily replaced would probably say, don't waste my time, change the picture.

    It would be interesting to read Lane's lawyer's response, but I don't think he's a weblogger.

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

    Yes :-)

  • Ethan

    You found one legal expert that agreed with you? Therefore Lane Hartwell is for absolute sure in the wrong?

    I ask again (first time on this blog): Why did the Richter Scales half-ass their credits? Why was Billy Joel more worthy of song credit than Lane Hartwell for photo credit? If they didn't have to seek permission to re-use anything, why did they credit some things and not others? And: How hard was it to ask for permission up front? (In-line disclaimer: I have asked for, and received permission to re-use one of Shelley Powers' photos in the past.)

    I'll hang up and take my answer off the air.

  • http://www.winextra.com StevenHodson

    Maybe it was rude. But that doesn’t justify getting the video pulled with a DMCA notice. Richter Scales might have been wrong, but so was Lane Hartwell — you don’t go whipping out the DMCA just because someone was rude to you.

    that would be like pulling out a .45 and shooting somebody (applicable in the US only) for taking that parking spot you want.

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

    Actually, Steven, I believe that's permitted in Texas.

  • http://www.horsepigcow.com Tara Hunt

    Actually, Jason didn't say that “asking for permission is nice” (that's quite a lofty drop in emphasis), he spent a good deal of his post explaining that it is ethics, not law that should determine the outcome of this case.

    Just in case you missed it:

    “Copyright law isn't really built for resolving disputes between individuals like Lane and TRS. It's built for resolving expensive and highly profit-driven disputes between large full-scale commercial entities like movie studios, book publishers, software companies, or search engines — entities with long-standing investments in the copyright system and in-house legal counsel to negotiate issues like licensing.

    Ethics, on the other hand, might just be the right hammer for this nail. Ethical behavior is behavior that leads to the “greater good.” It goes beyond the mere moral choices of right or wrong and deals with the broader question of the correct choice for society as a whole. If we, as an online society, want people like Lane to succeed in their work, to be successful and profitable photographers, we need to take care to promote them in a way that feels respectful and supportive. We need to make sure they succeed so that they will continue to provide us with amazing photos and make them available online.”

    and

    “…the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator — in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.”

    So, even though you played it down, I believe Jason was more in the Shelley and Tara camp than anything.

    Stop! Stop! We're both right! The DMCA sux, but TRS should have given attribution and not been community leaches. Unfortunately, we currently don't have much in place to promote these ethics. Perhaps we should be talking about this approach instead of splitting hairs. Until then, the only hammer Lane has is the DMCA.

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

    If that were to happen — if a court were to argue that a photo should be removed because it appeared for less than a second, in a video satirizing (in part) the person in the photo — then the idea of fair use might as well not exist.

    And if Lane Hartwell is right in using the DMCA to have that video taken down, which is what I think you are arguing (correct me if I'm wrong), then the same thing is true — fair use might as well not exist. And I think we would all be worse off if that were the case.

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

    We're both right, but I'm righter :-)

    Okay, maybe condensing his argument to “asking permission is nice” was
    a little extreme, but I think the point is the same. It's not legally
    required for a reason — because it's not necessary. That's an
    important legal principle and I don't think we should overlook it.

    Would it be nice if everyone asked permission? Of course it would. The
    fact is that in many cases it's impractical — another reason why it's
    not legally required. It would be nice if Lane had chosen another
    route besides a DMCA takedown notice too. Just because a hammer
    exists doesn't mean you should always use it.

    Why couldn't she have used moral suasion — in other words, persuasive
    argument — to make her point? Blog about it, get others to link to
    it, shame the perpetrators in public. Isn't that better than a notice
    and takedown?

  • http://allied.blogspot.com jeneane

    Mathew,

    According to the latest statement by Lane, the Richter fellas went to the law first. Rather than reply to her initial contact, ask what she wanted, offer to swap out the photo, or 18 other things they could have done, they called their lawyer, who said no, you're cool don't worry, and ignored her. Then the TOLD her they had a lawyer involved.

    That's where the “wrong” part of the equation resides. The DMCA thing is a result of their lawyer's action, without which, part 2 of our little saga would not have been necessary.

    Am I making any sense? I'm beginning to wonder if I'm speaking English. And if maybe that's the problem.

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

    Jeneane, I'm willing to agree it would have been nicer to try and
    reach some accommodation at the time — and maybe they did trigger the
    DMCA takedown notice by saying their lawyer told them it was OK. But
    the fact remains that by any reasonable interpretation of “fair use,”
    a photo such as Lane's that exists for less than a second qualifies –
    and should qualify. Therefore, their lawyer was right. The fact that
    they felt they had to seek legal advice for such a thing is part of
    the problem.

  • anonymous coward

    “if a court were to argue that a photo should be removed because it appeared for less than a second, in a video satirizing (in part) the person in the photo — then the idea of fair use might as well not exist.”

    Um, no. Fair use would still exist when the derivative work is a critique or commentary on the original copyrighted work. In this case, they are using the full copyrighted work in a context that does not have a specific commentary on the original work and therefore could easily use a substitute. Fair use is not a free-for-all… Just because you are doing a 'parody' doesn't mean you get to do whatever you want.

    If you can provide a court case that allowed for fair use where the derivative work does not directly rely on the original, please let us know. Every case I've read was a DIRECT parody or commentary on the ORIGINAL WORK.

  • http://burningbird.net Shelley

    “We're both right, but I'm righter :-)”

    Is that because you don't have two Ts in your name?

  • http://allied.blogspot.com jeneane

    “The fact that they felt they had to seek legal advice for such a thing is part of the problem.”

    w00t! We agree!

  • http://www.wakingideas.com Daniel Nicolas

    Were it me, I wouldn't have credited ANY of the original photographers either. It's not a key part of the work of art.

    I would have credited Billy Joel for the song because I'd want people (who don't know billy joel) to know that I didn't come up with it and that the music was specifically a parody of that song. The song is a key part of the work of art, in fact, 50% of the mashup is billy joel.

    It is obvious that the video creator isn't the original photographer of ANY of the photos used. It's beyond obvious that it was a killer mashup, a new work of art made from many, many other works of art. Lane Hartwell's actions are purely to get her name out there. Her livelyhood depends on her being able to contract work. By creating a “scandal”, she instantly had press in thousands of blogs. Trying to tell me her livelyhood is hurt by a 1 second flash of her photo in a mashup that doesn't credit her is absurd.

    As a photographer, I'm disgusted by Lane Hartwell's petty use of the DMCA.

    As someone who makes mashups, I can't wait for the next killer mashup. I just hope new people that might have started making something won't get scared off when reading stories like this that are by far the minority.

  • http://evelynrodriguez.typepad.com Evelyn Rodriguez

    “Trying to tell me her livelyhood is hurt by a 1 second flash of her photo in a mashup that doesn't credit her is absurd. “

    This was more like the last straw. Hartwell said her work is quite frequently used without permission and without credit. A little story: I remember a relative coming with me to Yellowstone National Park (I may have the park wrong) on a trip. It was specifically forbidden with federal signs posted that removing the obsidian stones was against the law. Said relative, “Oh, it's just one stone. Who's going to miss it? There are so many.” I was aghast. There in a nutshell is the whole slew of societal problems. No one thinks their “little” individual action doesn't matter.

    Me, I'll just take one itty bitty stone, yet if everyone thinks the same thing….voila! surprise surprise there are no more obsidian rocks just lying around in the wild in a couple of years.

    You can argue that photos are a renewable resource, unlike gemstones, but the fact is in this case I don't see why one artist can't respect another artists' wishes on how their own work gets used. I think this would be common courtesy.

    And why exclude the original artists from being part of the conversation? (She stumbled upon the video.) I thought the Web was all about linking, and adding context, layers to dig and explore in URLs, URIs, permalinks? Why cut that prematurely short?

    I see videos all the time where I'm really interested to know who is the musician? Where did that artwork come from? But more often that's left out altogether. And sadly, one less artist gets discovered, and one less artist that gets connected in this web we're weaving…the Internet builds through citations, recommendations via links.

  • a sober note

    This blogo-soap episode is probably the best thing ever for the concept of “Fair Use”, which many people either plain have never heard of or are confused about. Even Ms. Hartwell sounds unfamiliar with it as she referred to it in her official statement this way: “They (Richter Scales) said the video was a parody and thus the unauthorized use of my image was protected under something called 'Fair Use'.”

    I hope this incident get more attentions, and get talked about even more widely so people can get more educated about it. “Fair Use”, ironically, benefits the original works in many ways. Great majority of the artists want their works to reach as many people as possible, so if their art works are critiqued, reported, and propagated more, the art works get seen more and potentially gain more buyers. I totally understand this “possessive” sentiment of artists toward their works and want more control, and in Ms. Harwell's case, she was simply saying, “Look, you guys cannot use my stuff. That picture is mine. I raised my camera and took that picture, which is hard work. And I don't care what the law says, because, again, I took the picture, so I own it.”

    Ms. Hartwell now says she wants to settle this in a civilized way and won't sue Richter Scales. Bummer, I was hoping to have this issue go further into the legal arena — unfortunate as it is, but lawsuits do help to clarify things. Now, I kind of wish Richter Scales would sue Ms. Hartwell. For what? You ask. For violating their free speech rights, at the minimum.

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

    Yes — I'm compensating :-)

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

    Thanks for that comment, Daniel — glad to hear from a fellow
    photographer and mashup fan who has a different opinion than Ms.
    Hartwell.

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

    Okay — although not directly comparable to this case, in a lawsuit
    involving a biography of the Grateful Dead the court ruled that under
    the “fair use” principle the authors were entitled to use copyrighted
    posters of the band despite not having received permission to do so.
    Part of the court's reasoning was that the photos were small, and just
    a tiny part of the overall work.

    http://www.copybites.com/2006/05/second_circuit

    Under the kind of fair use that you describe, in which only direct
    parodies or satires of the original work would be covered, virtually
    every photo or video mashup or montage would be either illegal or so
    cumbersome as to be unreasonable.

  • http://blog.blogcosm.com/ blogcosm

    “the fact remains that by any reasonable interpretation of “fair use,”

    I'm not sure which word you don't understand: “fact”, “reasonable” or “interpretation”. The only FACT is that you, Arrington and LawGeek have weighed in on one side of a complicated legal question, and that other people have weighed in on the other side. (e.g. one of LawGeek's anon commenters raised some very serious objections to the cited cases.)

    You may sincerely believe that your critics are “unreasonable” — but that's all too often just an excuse for dismissing them, as you've done here. Guess what? Many thoughtful people who have real experience with copyright have come down on the other side of the “fair use” question. Or, at the very least, acknowledge that this case is well into the gray area.

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

    I haven't dismissed anyone. I've made my argument, plain and simple
    – and I've allowed others to do the same.

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  • http://hubpages.com/hub/Swing-Trading-x Swing Trading

    Interesting post. I have made a twitter post about this. My friends will enjoy reading it also.

  • http://hubpages.com/hub/Swing-Trading-x Swing Trading

    Interesting post. I have made a twitter post about this. My friends will enjoy reading it also.

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