Lane Hartwell: Still wrong on fair use

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.

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About mathewi

I'm the chief digital writer at the Columbia Journalism Review in New York, and a former writer for Fortune magazine and the Globe and Mail newspaper.

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