Erick Schonfeld is right about the debate that has been sparked by photographer Lane Hartwell and her decision to file a DMCA takedown notice against YouTube, in order to have a video removed that had a photo of hers in it (for less than a second), a debate that I think I helped in some small way to spark — for better or worse — with this post, which got almost 100 comments, and a more recent follow-up.

In his post at TechCrunch, Erick makes the point that this is not just about what Lane did, or whether the guys in the band Richter Scales should have been a little nicer when she asked them to remove her photo. Lane seems like a nice person — she should, after all, since she’s Canadian :-) But the principle of fair use continues to be tested in cases just like this, and they are just going to keep on coming.

So what if Richter Scales had to remove the photo, you might say. Big deal. And so what if they had to remove a bunch of the other photos, which the photographers involved are also pissed about, according to a recent post at PDNPulse. And so what if Lane and some of those other artists ask Richter Scales to pay them for the use of their work. So a stupid video mashup from some unknown band ceases to exist.

The problem is that the ability to blend media of all kinds — text, photos, video — is one of the most powerful things that the Internet and new media have brought us. Yes, the Richter Scales is just a goofy sendup of the Valley. But what about other videos for other purposes? The principle of fair use for artistic purposes and the purposes of commentary is being chipped away gradually, and each time a DMCA takedown is issued another chip falls.

In the comments on my post and those elsewhere, you can see supporters of Ms. Hartwell — and of the artists’ apparently inalienable right to control every speck of their creation no matter where it appears or for what purpose — slicing and dicing fair use until it barely exists at all. Richter Scales’ work wasn’t a direct parody of her photo, so it doesn’t qualify; it’s the whole photo, so it doesn’t qualify (how do you use an excerpt of a photo?); it was made for a band, who might one day sell a CD, so it doesn’t qualify.

And now, Ms. Hartwell tells CNET that she doesn’t want to say how much she has invoiced the band for, but she used a popular photo-management tool called FotoQuote, and priced it based on “usage, the market where the photograph is to be used and various other factors.” So how much does less than a single second worth of looking at a photo cost? I don’t have FotoQuote, so I don’t know. The mind boggles.

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

8 Responses to “TechCrunch gets it right on Hartwell”
  1. At this point, I think it's escalated to the point of unreasonableness. I just wrote a post saying that.

    It's one thing to protest the use of an image — she was within her rights to do that. At the point of protest, TRS had the option to remix the video without her image, or get her permission to use it. Let's leave behind the question of whether it should have been used at all for a minute…I think that one's been beaten to death.

    TRS' response was to remix the video without her image and do their best to credit all other images. Good for them. Lesson learned. But now we have Hartwell wanting to be paid, claiming TRS is a 'commercial enterprise'.

    The original video brought in a grand total of $120 in CD sales. Hardly big profit for big business. Sending an invoice for use of the image is simply an overreaction intended to be punitive and mean-spirited, in my opinion.

  2. The only reason it's crumbling is because people, especially many IP lawyers, simply do not understand new media and the new way people digest media. They're stuck in an old world business model and most likely always will be because “if it ain't broke…” applies quite well.

    I receive takedowns every single day at work, almost all of them illegal (in the fact that they're not properly formatted, lack certain criteria per 17USC, etc.), and almost all get dropped because people simply do not understand what the DMCA is. They think “well, that's my stuff, it's copyrighted, I want it taken down now” and are under the assumption — thanks to MSM — that all it takes is an email and an assertation. Most of them then quickly realize that there's a lot more to it and simply drop the takedown because it's fallacious at best (the most humorous one was a lady constantly whined to take down a LOLcat of her cat and was threatening to sue) or downright fool-hardy at least.

    This debacle about Hartwell continues to show that people are largely ignorant of the law, this goes for both sides of the debate. TRS misunderstood Fair Use, and Lane, well that's all over the place so I don't need to repeat it.

    Ignorance of the law is no excuse for abuse of the law.

  3. In the end, it's all about the compensation, as some of us suspected long ago, and not about attribution or “not replying nicely to an email request”.

    It's so easy to close up your photos in Flickr, or simply to use a real photo sales site, that it's really hard to understand why LH didn't do that in the first place…

    It's all about the money, Zappa said it best a long time ago… :)

  4. Agreed.

    It is all about the money.

    And all this talk of copyrights and not stealing from artists and plagiarism is all a smokescreen for a hack to get paid. It's so disingenuous it makes me sick.

    This photo in particular isn't art, she takes pictures of tech guys at parties, with a digital camera, with an on-camera flash. We're not talking Robert Frank here…

  5. […] about copyright and the merits of the “fair use” principle (for that, you can see this post and related posts), but I thought it was interesting to read about the response by cartoonist Jim […]

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