TechCrunch gets it right on Hartwell

by Mathew on December 20, 2007 · 8 comments

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.

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