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At the risk of beating an already unrecognizable horse even further into the ground, I see that there’s a new “Bubble” video from the band Richter Scales available, with the offending image of Owen 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 D.

So is the whole sordid affair over, finally? Not really. Although the band has added credits for all of the images, apparently that’s not enough for Ms. Hartwell. She says she wasn’t able to come to an agreement with the band because they refused to pay her for the photo, although she doesn’t say how much she was asking for. She says she was planning to use the money to pay her legal costs and then donate the rest to charity.

Contrary 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 keep taking her photos. But that doesn’t change the fact that what she did was wrong, and asking for money is even wronger. So the video got a million views on YouTube — so what? A startled prairie dog got 10 times that many.

If you want to read my thoughts in more detail, please have a look at one or both of my previous posts — and read the comments too, because there are some good ones (and some not-so-good ones) in there. In a nutshell, I think Ms. Hartwell’s actions are part of a trend that is chipping away at the principles of “fair use” and creating the impression that copyright law’s sole purpose is to act as a weapon for artists and content creators to police any use of their content, anywhere, for any purpose.

A photo that has been previously published and appears for less than a second in a video satirizing (in part) the subject of that video is fair use, plain and simple. Richter Scales doesn’t owe Ms. Hartwell a penny. Would it have been better if they had asked for permission or given credit? Yes. In their post on the subject, they say they tried to contact the photographer, but she was too busy filing a DMCA takedown notice.

There’s a good analysis of the issues behind this event at Plagiarism Today, and Chilling Effects has a good overview of fair use.

About the author

Mathew 2429 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

27 Responses to “Lane Hartwell update: Still wrong”
  1. My last comment:

    Go ask your lawyer friend, but you realize that they just gave Lane Hartwell her 'case' by this video. They showed that a) credit could have been given originally without hardship, b) the photo could have been easily replaced without hardship, and c) the photo was shown a million times.

    They also neglected to mention that Lane Hartwell felt she had to hire a lawyer, because they had, which forced her into unreasonable and unexpected expense.

    My favorite is the band's take on what is a 'not for profit' — that they hadn't made any yet. Yep, puts them right up there with Cameras for Kids.

    But hey! Don't let me stop you from defending your own sense of rightness, to the death. Goodness knows, empathy or openness is not rewarded in weblogging.

  2. After watching the video – I would be hard pressed to argue fair use. This is a music video, promoting a band & web site that is selling CDs and booking gigs.

    The video is a commercial for the band and the implicit satire does not argue for their right for wholesale copyright violations. I wonder if the RIAA is not also interested in the cover of the Bill Joel tune?

    Weird Al has made his living from similar parody songs – but in every case he has needed to get permission of the rights holder. How is this different – for either the song or the images?

  3. I think what she “did” do that is positive is get this discussion going. But in general, I agree with you, it's fair use.

    Jim Kukral

  4. Hi Matthew,

    Just wanted to let you know that New York Photographer Ramona Rosales has spoken out, she's the pro photographer that shot Mike Arrington for Business 2.0.

    http://www.pdnpulse.com/2007/12/bubble-video-th

    Ramona Rosales: “I'm totally against the unauthorized use of my image. I was never asked permission nor have I received any compensation for it's use; furthermore I don't feel it is justified simply because they gave me credit. I don't consider (nor does copyright law) the use 'fair use' or 'use in parody' since it is a slide show of the original images. The Richter Scales are benefiting from the video because they are promoting themselves and selling a product (their CD) on their website/blog. Because of the free use of my image (and all the other photographers/artists involved), they stand to make a profit. I will be contacting the Richter Scales today to remove my image.”

    http://www.ramonarosales.com/

  5. […] Read the rest of this post Print Sphere Comment Tagged: ere Comes Another Bubble, Mathew Ingram, Lane Hartwell, Richter Scales, Fair Use | permalink […]

  6. I'm still shocked that independent artists are attacking the doctrine of Fair Use. It is a right that has to be constantly defended — media conglomerates loathe it. I can understand the frustration at not being credited, but these photographers are attacking the rights of a whole range of artists, from documentary film makers to historians to sound collage. All for a low res, already-published image flashed for a second of in YouTube video….

    Watching independent cultural producers attacking their own rights is truly sad.

  7. Shelly,

    I may be coming into this a bit late… but I couldn't help to notice this comment from you.

    “What I admire about Hartwell is her consistency. Regardless of the vilification, she's never wavered in her response or her assertions.”

    And here's my problem.

    Lane says this in her first post regarding the Richter Scales:

    “People have asked me why I’m taking this action. When I find someone using my work without my permission, I ask them to remove it or pay a fee. They usually remove it and we are finished. The band did not remove the image from the video when I brought it to their attention and instead they told me they had the right to use it. They could have easily apologized, removed the video from YouTube and re-edited without my image and reposted.”

    And now that they have removed the photo, and re-uploaded it. Lane is still asking for payment by sending an invoice.

    That seems like wavering to me.

  8. Thanks for posting that, Zota — those are my thoughts exactly.

  9. My partner Peter and I had a big yak about this last night. Peter made an interesting point about America vs. Canada which I think is partially at the heart of why I'm finding this conversation so frustrating. Pamela Wallin had been at Ideas City a couple years back and talked about the biggest difference she found between Canada and US (as the Canadian Ambassador positioned in NYC) – The litigious nature of American Culture. It is after all the place where a man jumped in front of a subway car to commit suicide, survived and then successfully sued the city of NY.

    Many people have made the suggestions before but I'll add them again. If you don't want your photos used by anyone…

    – don't put them on Flickr or any other photo site without privacy settings
    – put a water mark on the photos which would essentially stops anyone from using them
    – go complain to Google for having an image search (who unlike flickr doesn't have a filter for searching only those photos under creative commons)

    It's not just big business that needs to re look at the way they do business, it's independents like Lane as well. Using the law as a big stick to ensure ‘business as usual’, will only as Zota says, end up actually hurting rather than protecting artists in the long run.

    I hope that Lane reconsiders her decision to sue and look at the greater issues beyond what she feels is this current injustice. There is a bigger picture out there and since Lane could have done a great deal more herself to protect her photos, she should take some responsibility and move on……

  10. […] than recap the issues, I suggest reading Shelley Powers’ and Mathew Ingram’s thoughts on the issue. It’s also worth reading the players’ posts — Here is the […]

  11. […] to spark — for better or worse — with this post, which got almost 100 comments, and a more recent […]

  12. […] in the video, and now she’s upset that it’s not in the new video. She’s in the wrong here for a variety of reasons. She misused the DMCA and now she’s demanding payment over what […]

  13. […] in the video, and now she’s upset that it’s not in the new video. She’s in the wrong here for a variety of reasons. She misused the DMCA and now she’s demanding payment over what […]

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