Lane Hartwell update: Still wrong

by Mathew on December 19, 2007 · 27 comments

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.

  • http://burningbird.net Shelley

    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.

  • Damon Kiesow

    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?

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

    Well then it's not a very good promotional video, because I watched
    the whole thing and didn't even realize it was a band. In any case,
    several different levels of U.S. courts have ruled that whether the
    content is for-profit or not (which I don't think this is in any case)
    is irrelevant for the purposes of determining fair use.

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

    Shelley, please don't make it your last comment — I enjoy our little
    chats so much :-)

    The video proves nothing about whether the photo was fair use or not.
    Whether it is crucial to the finished product, and whether the band
    was able to replace it with something else is legally debatable — and
    in any case, they only replaced it because they were threatened with a
    DMCA takedown, which hardly seems fair. How many times it was viewed
    is also irrelevant. Not only didn't the band make any money from
    those views, but whether something is for-profit or not has no bearing
    on whether it's fair use.

    I also fail to see how Richter Scales “forced” Lane Hartwell to hire a
    lawyer. She could have accepted that it was fair use, and/or pressed
    her case for credit. She didn't have to use a lawyer to force a DMCA
    takedown. That was her choice.

    As for the empathy part, I have said several times that I sympathize
    with Lane being upset by cases of theft — it's just that I don't
    believe this is one of those cases.

  • http://burningbird.net Shelley

    Frankly, I'm quitting, which is why this is it for me.

    This could have been an interesting discussion on Fair Use, but it quickly degenerated into Lane is a bitch who doesn't deserve to work again, because she spoiled our fun. It became petty at best, rather pathetic at worst. Disagreeing with Lane is one thing, but I've seen people advocate her never working again, destroying her business, even 'beating the bitch up' in comments at another weblog.Tell me: is any of this a reasonable response?

    How this can be seen as a triumph, in any form, for 'fair use' boggles my mind. I found this event disillusioning about this entire environment.

    LawGeek had the most reasonable take on this, and it was delightful to read the post and comments, primarily because it really did become a discussion on the law, not personalities. One thing we talked about in comments was how TRS found the photo, and how important it was too the work. In addition, how much of a hardship would have been to give credit. Well, we can see, none really.

    Ultimately, whether TRS had fair use on their side or not, their ethics were and continue to be, in my opinion, dubious, at best. I wouldn't necessarily use this as a poster child for a fight for fair use. And I certainly don't think Lane Hartwell has deserved, or continues to deserve the vilification leveled at her. I would have to ask–what other factors are at play? It couldn't just be because people couldn't see this one video. There have been, and continue to be worse challenges to 'fair use' than this one act.

    As for the lawyer, frankly I believe Lane Hartwell does have a decent case to sue in court for her costs associated with this event. But that's between her and her lawyer. What I admire about Hartwell is her consistency. Regardless of the vilification, she's never wavered in her response or her assertions. TRS, on the other hand, are all over the board–saying whatever seems to please the masses the most.

    If we were talking about who represented the best of weblogging–that ability to stand firm on one's principles and have one's say, regardless of popular opinion, of the two–TRS or Lane Hartwell–I would choose Hartwell.

    What astonishes me, though, is how TRS asserts themselves as a not for profit organization, when the reality is, they just haven't made a profit yet. And how no one question their assertion. In fact, I've seen two publications actually repeat it.

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

    Shelley, I agree that the discussion has degenerated, as these kinds
    of things often do online. And I'm willing to admit that fair use is
    in many cases a grey area, which is why I feel it's an important
    debate — it's not just because I like to pick fights. I honestly
    believe that we need to protect that right — and it is a right.

    But I'm not sure why you think Lane's response displays the best about
    blogging — it's true that she stood firm on her principles, but she
    also didn't write anything about it until after she had gotten a
    lawyer to hit YouTube with a DMCA takedown notice. Wouldn't the best
    response have been to write about it and get others to join her cause?

  • Damon Kiesow

    And how is it different from the satire Weird Al does – which requires him to get clearances?

    The video uses a substantial amount of the image, it did not use it for the purpose of commenting on the image itself, and it did it within a commercial context – as opposed to an academic/non-profit one.

    That seems like three strikes out of four. The only criteria I see in favor of fair use is that the video probably does not significantly impact the economic viability of the photo in terms of future licensing.

    The 'parody' argument is valid only if we agree that the photographer is part of the culture being parodied. That seems a stretch and the ad absurdum result of that would be to nullify a lot of copyright law.

    I probably would not have bothered to pursue this if I was the photographer (there is no money to be had from it) but I would think she has a good chance to win if it went to court.

  • http://burningbird.net Shelley

    “But I'm not sure why you think Lane's response displays the best about blogging — it's true that she stood firm on her principles, but she also didn't write anything about it until after she had gotten a lawyer to hit YouTube with a DMCA takedown notice. Wouldn't the best response have been to write about it and get others to join her cause?”

    Oh, god no. That is the worst of this environment, don't you see? We have become not a celebration of the individual, but a validation of the many–we have become Mob, personified. We willing, gleefully destroy lives, vilify, move en masse based on the popularity of the ringleaders, not the justification of their cause.

    People don't check the validity of a claim, they don't seek to play fair, they don't even care about the true rightness of a movement–they just follow whoever can generate the most noise.

    I have to clarify, not all of weblogging, but certainly in many parts of the tech weblogging world. One can see evidence in Techmeme. We no longer seek to highlight good writing, thought, or reason–just whoever has the best marketing strategy. Right now, I see a bunch of guys, five handing each other in triumph for having outwitted Hartwell, yet nary a mention of that sticky point that GeekLaw brought up: ethics. Why? It's not fun. It won't get you links. The mob, frankly, finds such to be too much work. So much more interesting to just react.

    Ever heard the term “groupthink”. Congratulations, because at some point in time, weblogging became less a celebration of the individual being heard, without having to go through some authority or have the weight of a group behind them, and became, instead, the mass mind where the individual is ruthlessly suppressed.

    You and I have gone somewhat off topic, but I hope you won't mind if I followed the new topic thread. Regardless, it is only between you and I — this topic is so 'yesterday'.

    What new fun do you have for us today, Mathew?

    (Thanks for letting me comment here, and not automatically slamming me down.)

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

    Damon, I think you need to do some research into fair use.

    The fact that the entire photo was used is irrelevant, as the Law Geek
    notes (I've linked to his post in previous posts of mine) — in almost
    all cases involving photos, the entire thing will be used, and several
    rulings have made it clear that it isn't just the amount of the work
    that is used, but how much of the supposedly infringing work it makes
    up (in this case, a tiny fraction).

    The fact that it doesn't specifically parody the photo itself is also
    not enough to disqualify it as fair use — satire of a larger subject
    of which the photo is a part (or which it in some way represents) is
    enough. The fact that an allegedly infringing work is for-profit has
    also been ruled to be irrelevant when deciding on fair use.

    So you're wrong on all counts. As for Weird Al, he isn't legally
    required to get permission from the artists whose songs he parodies –
    he does it by choice.

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

    I agree that groupthink and mob rule is a risk. I can only hope that
    people will gravitate to those who actually think about the issues
    involved — and I hope I have shown that my point was to do that, not
    to attack Lane Hartwell.

    In any case, maybe you're right and it's time to move on. I think
    there's going to be plenty of opportunities to talk about the same
    issues before too long.

  • Damon Kiesow

    Matt, thanks for the lecture. I might disagree with your conclusions but I certainly would not argue you arrive at them via ignorance.

    Fair Use is a doctrine that can only be resolved in court. That is why most artists (like Weird Al) get permission or pay for clearances for any use that might be reasonably questioned. It is good to be right – it is also good to avoid being sued.

    The link you provide above is actually a very good one: http://chillingeffects.org/fairuse/faq.cgi#QID817

    I would say the bubble video would have a 60/40 chance of losing if it went to court. If you were to pick a number – what odds would you give it?

    cheers

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

    I'd say more like 70/30 in favour — maybe even 80/20

  • http://www.jimkukral.com Jim Kukral

    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

  • http://www.fetching.net Lane Hartwell

    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/

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

    Thanks for letting me know, Lane. No offense intended to you or
    Ramona, but I think you are both wrong — but then, that probably
    won't surprise you :-)

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  • zota

    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.

  • http://www.yplust.com Yen Lai

    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.

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

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

  • http://leighhimel.blogspot.com leigh

    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……

  • http://www.yplust.com Yen Lai

    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.

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

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

  • http://leighhimel.blogspot.com leigh

    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……

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