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.


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.

About the author

Mathew 2430 posts

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

29 Responses to “Lane Hartwell: Still wrong on fair use”
  1. 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.

  2. 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?

  3. 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.

  4. 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.

  5. 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.”


    “…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.

  6. […] LawGeek says the video was not illegal.  Matt Ingram followed this story from the beginning and his original views are supported by LawGeek.  Meanwhile Mike Arrinton thinks Lane is wrong on […]

  7. 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.

  8. 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.

  9. […] Thomas — the photo that Lane Hartwell filed a DMCA takedown notice about, forcing YouTube to remove the video — replaced by one of Kara Swisher from All Things […]

  10. […] Posted by Chill on 27 Mar 2008 at 03:12 am | Tagged as: Uncategorized To all those microcephalics who didn’t know Fair Use from a case of scabies, one the reasons the company here won the ruling was that their product was considered a transformative use, just as the Richter Scales’ use of Lane Hartwell’s image likely would have been. […]

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

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

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