So the Richter Scales video that everyone has been talking about is history (mostly – good old Daily Motion tends to ignore the take down notices, so I was able to embed it above). It is the victim of a bullying tactic by a photographer and her lawyer. Once again, a perversion of copyright is being used to destroy art.
The video, set to the tune of We Didn’t Start the Fire by Billy Joel, mocked just about everyone in Silicon Valley as being part of a new technology bubble. I wasn’t spared – I even have the honor of being the display image for the video in the YouTube version.
But the video has now been taken down, because Lane Hartwell, the photographer who took one of the pictures that was included in the video, complained that she wasn’t paid for her work. She hired a lawyer and sent take down notices to all of the major video sites, and the video was removed.
A bit of a mob in favor of Hartwell has come together to support her. But the mob, while virulent in their support, has little understanding of copyright law.
I spoke with a copyright attorney this afternoon and described the facts to him. He confirmed my thoughts on the matter. Copyright is a structure around prohibitions, not permissions, he says. That means it lays out rules for things people cannot do with your work – it does not give you the right to demand permission before any use is made.
The Richter Scale video was almost certainly fair use of the photo. A court would look at a variety of factors in making the determination. Among those factors, a court would decide if the use is likely to adversely affect the incentives of others to create copyrighted works, and whether their decision one way or another would tend promote the progress of science and the useful arts. In this case, the inclusion of the photo in a parody work would almost certainly be held by a court to be fair use, the attorney said.
The real issue here is that Hartwell’s feelings were hurt. She wanted attribution in the video, and the creators ignored her. Attribution and people’s feelings are not things copyright law considers; rather, it sets forth the rules under which copyrighted works may be or may not be used by others. In this case, a court would likely side with Richter Scales. But to avoid the risk, they decided to simply take down the video. I hope they remake it without Hartwell’s images and repost it soon. It’s too good to not be republished.
Societal ideals around what constitutes ownership over art are changing. People who try to protect and silo off their work are simply being ignored. Those that embrace the community, and give back to it not only allowing but asking for their work to be mashed up, re-used and otherwise embraced are being rewarded with attention. At the core is a basic implicit understanding – if you want to be part of the community, you have to give back to it, too.
See our related post, “Being Stupid and Litigious Is No Way To Go Through Life.”
Just silly …
Yes.
“We’re sorry, this video is no longer available.”
The video won’t play. And what’s with that silly pic with the cigar?
Are you trying to look like some kind of big player or something?
While I don’t wanna be offensive, It looks like a joke. Again, not trying to be offensive with the comment.
So can you fix the video please?
Mike, the old world clings to such laws for stop progress and access to information. The web has proved that knowledge is no longer the domain of the privledge.
Daya Baran
WebGuild
http://www.webguild.org
It’s still active as the Yahoo! video on your original post.
Should read – The old world clings to such laws to stop progress and access to information.
Daya Baran
WebGuild
http://www.webguild.org
Well said, Michael. Hurt feelings are no basis for court action.
If you’re looking to get it, it’s still available on other sources:
*cough* http://www.shou..._Another_Bubble *cough*
“The real issue here is that Hartwell’s feelings were hurt. She wanted attribution in the video, and the creators ignored her. Attribution and people’s feelings are not things copyright law considers;”
Ah. I just read the article. Stuff gets taken down from youtube every single day. People reupload it. I understand that you want to find the root of the problem and try to offer a good alternative. The real world alternative is to repost the video.
The best screening the have is image vector comparison on frames and that’s really overwhelming on cpu cycles. So human checking is actually almost as good.
The volume of videos on youtube dictates that they can not all be screened. The automation techniques are flawed and you can easily just repost it.
The “let’s be civilized about this” approach is often times not the one taken online.
One could also contact the EFF about this. They often times help in cases like these.
http://www.eff.org/
You can see some of the litigious photographer’s thoughts and work on her site, http://www.fetching.net
Here’s a link to her thoughts on this specific matter. She’s documented it all in her flickr account:
http://flickr.c...ing/2090802706/
Dozens of comments from the community, some supporting her position, others not.
Give the woman a break. She’s clearly worried about being able to maintain a living. Giving to the community is great and worthy, but not when it deprives someone of the ability to feed themselves. (I am not suggesting that this video is the case). Photographers in general are seeing their industry really reduced and people who once could make money to live are being robbed by customers and internet users using images for ads and so forth. (Again I am not suggesting this video is one of those cases) but if we want people to be part of the community and not get worried and freaked about innocent uses like this video, we have to support people when unfair uses (that is uses that deprive someone of their livelihood) occur.
All said I agree with you on one point, community has to flow both ways. We can’t expect people to contribute without respecting them and they can’t expect to participate without contributing.
Unfortunately the photographer didn’t have the foresight to see that regardless if she was given credit, that she could have used the video to promote her work and receive possibly millions of hits and potentially hundreds or thousands of requests for work.
I wonder if she’s tried using digital cameras, or if she’s still only using film?
All I would add is that her and other photographers, like the one who threatened to sue techcrunch, need to start reading some Seth Godin like authors, so they one day will understand the opportunities they have when their property is used virally. (and not by the Dan guy)
Blaming a photographer for getting upset that somebody boosted her work seems a little much, Michael. The Richter Scales could have, say, not taken the photo in the first place. Or they could have reuploaded the video without the photo in question and adding proper credits for the rest. Neither would have been hard.
Also, it’s not clear that this is fair use. See here for more:
http://www.copy.../fls/fl102.html
The Richter Scales used the entirety of her work (one photo). She’s a commercial photographer who sells photos like this, so it had commercial potential that may have been harmed. They used it for what is at least partly a commercial purpose, given that they are selling services and albums. And YouTube certainly looks like a commercial operation to me.
Lastly, the parody exception doesn’t obviously apply here. They aren’t parodying Lane Hartwell and her photographic style. How can you tell? Well, if they put in some equivalent photo taken by somebody else, it would have been just as good, right?
Sadly, it seems as though Lane Hartwell didn’t even care if attribution was made in the video. Both sides were in the wrong in this instance (not legally, but just morally), but Lane took it to a bad place by bringing the law into it. The proper thing would have been to calmly ask the video’s author for attribution and let it go.
She shot my friend a while back and my friend included her photos on her MySpace page. My friend was not sued.
I can appreciate the photographer’s dilemma here. Even if you are noted as the author in the derivative work, you are your own brand. You have a reputation among the community and if your work appears in something that negatively affects your brand, it can have an effect on demand for your work.
Hand in hand with that however, if you want mass appeal for your work, you have to put it out there and allow for its usage in many forms. Like it or not, we’re entering into a world whereby digital representations of content moves, and it moves quickly and without your knowledge. If you aren’t comfortable with that, you need to pack up and go home. As someone who shoots, I can tell you that the moment I’ve put any of my work on the Internet, I know it’s largely out of my control. It’s called fair use.
If Lane was simply pissed that she didn’t get paid, then that’s an ego a bit out of control in my opinion.
For those who haven’t seen some of Lane’s fabulous work, I highly recommend checking out her Flickr page.
http://flickr.c...photos/fetching
Alexander,
She had a remarkable opportunity to post the video herself and mention that her work was used in one of ‘the’ most popular viral videos on the net today.
She could have used this to her benefit, and get the recognition from thousands. Forget the no-name band that will never have a bigger hit once this one dies a slow death.
Yes her industry is taking a huge hit, as other many others today. I do not condone theft or piracy in the least.
However I think there are many ways this could have been exploited in her benefit without the need for legal threats. What she needed was an expert marketer and not a half-rate lawyer.
But isn’t Mike just making it worse by giving her all this press?
Why didn’t they just upload it to mirror sites and repost it without her photo?
By Mike posting this on Techcrunch, she won. This claim could be as much about shameless self promotion as it is about proper citing of work right? –notice the question mark
So why this post blowing the issue up artificially? Why not let this claim die off in the shadowy abyss of the internet? Wouldn’t that be far better conditioning for those who would consider doing the same?
I agree with the COFFEE MAN On this, great point: She should have hired an expert marketer and not a half-rate lawyer
hehe, that’s why I downloaded it, like I do with many videos I like.
I checked out the flickr page and was less than impressed. Big Deal. For those that post praising her brilliant work this is what I have to say:
Every year in Vancouver, a group hands out disposable cameras to the residents of the downtown eastside – the poorest neighborhood in our country. These people have less than nothing.
The cameras are gathered 3 days later and voted on by the community, and produced into a calendar which raises money to help them.
I would take any of their photos over what I saw on her flickr page hands down. You can see for yourself:
http://www.hope...%2008/index.htm
As for Chris’s comment about her winning because TC gave her a mention. What does she win when every person that hears about her, hears that she’s litigious? Sorry I don’t believe that would help her business or reputation (she’s no Annie Leibowitz).
That should have said she’s NOT Annie Leibowitz.
Who could and would get away with being litigious.
does coffee man know about rel=nofollow?
This is not the right place for this info, but I know Mike cares and it’s not something I would post about.
http://www.flic...3151&size=o
beercosoftware.com/tc/terms.txt
beercosoftware.com/tc/agreement.txt
After being bought by Penthouse AFF is now adhering to new antispam guidelines, which probably means we won’t see the adverts in craigslist or inappropriate places anymore.
Just giving props out to AFF because they cut me checks. Actually Penthouse now cuts me checks. I wish they’d send me some chix too, but what can you do?
Again, it’s not something I would blog about, because I am a customer, but Mike seems to love AFF these days.
This stupid bitch needs to get smacked around with my mushroom tip.
This post smacks of hypocrisy – Mike you always rant about folks not giving you due credit for stories you break, this photographer (not sure why everyone brings her sex into it) wants due credit for the work.
Let’s take a look at what’s on her iPod and see how high and mighty she is.
Seriously, though — while I agree wholeheartedly that she has rights to her works I also think she could have taken advantage of the situation and used the video to promote herself, rather than play the victim. It looks to me like she enjoys capturing images from live events, getting “the moment” — she should be happy someone noticed, after all, it’s not like she’s Ansel Adams, she’s just a pretty average commercial photographer.
Is this story really about one picture or did I miss something?
Can’t the guy re-edit and put in another picture?
Whether or not what the photographer did was lame, the videographer is a total loser if that’s the real story.
Unless you’re saying that photo was irreplaceable and impossible to exchange for another. Then it would kind of make sense that the photographer wants her due, right?
Is there a third possibility?
This videographer sounds like a loser, sorry.
Who gives a F@#$ about your photo lady.
Hey Richter Scales, why don’t you just remove this idiot’s photo from your project, re-render, and re-publish. It’s one of the funniest vids i’ve seen in a while.
She is whining, there is no attribution clause in Fair Use.
Can someone please shuttup Chris R.?
I mean, seriously. If that ‘Canadian PoTS’ had at least read the entry, he’d have understood why the video doesn’t work. D’uh.
Mike,
Like William mentioned above, the fact that the song parodies another song (and is therefore “a parody”) does not mean they can raise the parody defense to the photograph they used.
For a relevant case, see Dr. Seuss Enterprises v. Penguin Books, in which somebody published a The Cat In The Hat rip-off that made fun of OJ Simpson. Because the publication was not a parody of the work being ripped off, the parody defense was not valid.
Here is a synopsis of the Dr. Seuss case: http://www.virt....com/seuss.html
Other possibly valid, but kinda weak defenses: the photograph was only displayed for a second, and possibly with a transformative purpose.
Practically, I don’t know why Richter Scales didn’t just edit that photo out of the video and reup the video. That wouldn’t have take more than a few minutes of effort.
Did you get your attribution now?
also
waaaaaaaaa
David – this isn’t a parody defense, its fair use. There is no infringement. The law quite simply does not give the creator absolute rights over what they create. But a lawyer will send a letter for money, and that scares the hell out of people.
#21:
Not sure to what you are referring. I don’t have any financial or interest otherwise in the link I posted and was only providing the link to prove my point that people with absolutely no photographic skill can take random pictures of society at the same skill level she exudes.
The link was posted because others raved about her work and posted her link. Had I left out the link, who would be able to compare should they be interested.
And my point still stands…..she should have hired a great marketer instead of a half-rate lawyer and taken advantage of being involved in something as viral as that clip. Now she’s known as a litigious business person who anyone with common sense will want to stay clear of. Congrats.
Oh, and #21 I do post here regularly if you are suggesting that my post and link to my site is the shameless self-promotion you are accusing me of. So basically…..go blow.
I said it before and I’ll say it again – legal fair use and the youtube terms of service arent necessarily the same thing -
http://www.yout...howto_copyright
“Some examples of copyrighted content (although not all) are:….
Slide shows that include photos or images owned by somebody else”
I think this post is unfair, and we’re only getting one side of what happened.
It should be noted that Lane is more of a photojournalist and not a photographer. The distinction between the two is that her work, as a low rung photojournalist, is more product (like cheap mass produced shoes from China) than crafted art, and therefore, the value of her product is extremely low.
So, value in hand, as others have mentioned, she should have hired a marketer instead of a lawyer and exploited the inclusion in the video.
I think it should also be noted that from all photographs of her she appears to be quite old (over 30) and she probably has very little understanding of the origins of the Internet (as most people over 30 don’t have a clue) and the culture of giving back to the greater good without kvetching over such a trifle issue.
Hopefully she’ll log-off the entire ‘Net for a year or two and think about how she could have handled the outright theft of her product with more grace and alacrity.
Lame.
P.S. If anyone in a subsequent comment quotes or refers to my above comment without proper credit and payment, you’ll be hearing from my lawyers!
#36, “(as most people over 30 don’t have a clue)”
What a moron. Did you categorize all people? How old do you think the inventor of the Web is? Do you even know his name? Do you know how old Tim Bray is? Or Brandon Eich? Guess what, punk ass, they’re older than 30.
In fact, almost all the intelligent people I know are over 30. Know why? They don’t categorize people, and they don’t have sophomoric, mysogenic screen names like buster hymen.
Twit.
Mike – We had blogged this and thought it was hilarious. One of my colleagues e-mailed that it had been ’shot’, so you disappeared. All this author (photographer) had to do was let herself become known on Facebook or twitter, etc. and she probably would have gotten all the attention she wanted and more.
Hi Michael,
Don’t you think it would be a good idea to hear both sides of the story before making your statements as though they are fact? You’re wrong on several counts, but I will go into that in detail on Monday when I release a formal statement. I’ve tried to keep as quiet about this as possible while in talks with the Richter Scales, just out of respect for the whole negotiation process. I think it’s rather bad reporting on your part to state things as facts when you haven’t heard both sides.
Best,
Lane
Even if the use of the photograph is not or should not be punishable by law, it’s still disrespectful to the creator. The law requires just the bare minimum of civility; ideally we would hold ourselves to some higher moral standard for being nice to one another.
The only way to win this settlement is… If they put anything on TV. The victim of copyright can countersue for millions for anti-monoploy practice and unconsitutional practice: 1st Amendment.
You tell them about shakira parody vs. Shakira video. Why won’t they sue? Why non-commerical creator?
#38
You fail.
Why is she so high and mighty about her mediocre photos? It seems to me that her photo wasn’t used in the video because it was a good photo – it was used because of the subject.
Mike looks ugly and scary.
Let’s see. There’s a photographer defending her property rights and a videographer appropriating the photographer’s property without attribution, compensation or permission. And the photographer is the heavy? I don’t think so. The attorney who told you, “Copyright is a structure around prohibitions, not permissions,” was not totally informative. Ive observed it’s a structure built around the creator’s right to determine how and nder what circumstances his or her work can be used. There are simple mechanisms for getting permissions beforehand — if the user is of good faith
stop hidden your lies. You tube image looks gross and smoking cigar. Make voting poll…
Mike… Stop it. Stop embrassing yourself. Stop showing off with cigar.
being yourself. Will you take off cigar off the image? Why?
1. Smoking cause cancer.
2. Peter jennings killed himself by smoking
3. Smoking killed more than car accident, terrorism, hurricane, etc.
4. You are not really Michael Arrington.
5. Be yourself… Be cool.
Without take off. Journalist will emulate you and end up michael moore’s health care problem. Companies and health care companies doen’t give sh*t.
#6
THANK YOU Steven! I’m blogging about this, including the vid @ http://www.capyblanca.com. And I’ll download a copy should someone take it off soon. Cheers, Mate!
If fair use is such a simple take [it for granted], is there any need for the existence of CC (Creative Commons) stuff..