Misunderstanding Copyright Law And Ruining Everyone’s Fun
Michael Arrington
159 comments »
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 …
“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.shoutfile.com/v/ZLi.....her_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.com/photos/fetching/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.copyright.gov/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.com/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.hopeinshadows.com/c...../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.flickr.com/photo_zo.....amp;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.virtualrecordings.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.youtube.com/t/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..
Nice post Mike, though from this account it looks to me like the creators were too cavalier in not giving some attribution. Sure, they probably did not cross the “fair use” line in this case, but the way to break down the abuses and problems from the old copyright laws is to use things you are entitle to use - but then treat the authors with great respect. That will create the win win deal we all want here.
Wow, those arent art. Those are snap shots.
I looked at some of her flickr pictures and she is a terrible photographer. Shes blowing this way out of proportion.
I downloaded the video, and Im going to make sure I share it. She is wining about something that is no big deal.
Besides, isnt the most sincere form of flattery imitation? Wouldnt it being used be about the same?
She needs to take a lessen from the TV studios and assume that because people are using it and distributing it means they like it. That means she has done her job.
Also, I think that when you become so concerned about money, then it no longer is art, and that clearly is the case here.
“I was not credited” “I was not credited”"I was not credited”"I was not credited”"I was not credited”"I was not credited”…………..
If you want people to know you took a picture, why don’t you just put a big watermark all over the picture with your name? Something like “My Freacking picture © 2007 by Crybaby Fotoblog productions….
Like when you were a kid and you put your name on all your toys….
I even tattoed my kid’s forehead with “© 2007 Tostada-man Productions. All rights reserved. 100% Made in the USA with 100% USA parts and labor. No women were hurt during the manufacturing of this kid. Might contain chemicals known to the state of California to be hazardous to the wallet.”
That way, when someone takes a picture of my kid, I am dully credited…
duh!!!!!
No women were hurt… except the poor kid ©’ed
coffee man or coffe mug!!! whatever the hell you call yourself. you are full of dodo, the creator of the video did not give attribution to the owner of the art work and that does not constitute fair use.
most of you writing your comments here and bashing the lady have never created anything worth copy and thats why your little minds (most of which is as big as a peanut) will never comprehend why its important to respect the rights of copyright holders..
Well, I for one having made works and currently continue to do so, will no buy from her. Yes, we all need to make a living. This would have been the best advertising but instead she focused on the lack of a measly couple hundred bucks. So yes I am aware of you now. You are on a list of people never to buy from that I distribute to all my clients and friends.
Oh, thanks #6. It is a funny video and I have downloaded it.
at Mike.. shut up and learn English.
Michael, in your article you say it’s fair use because it’s a parody. In your comment (#32), you say it’s fair use, but not via a parody defense. Which is it?
If you’re running with the latter, could you spell out why you see it as fair use? It wasn’t “criticism, comment, news reporting, teaching, scholarship, [or] research.” It was more “of [a] commercial nature” than “for nonprofit educational purposes.” So it doesn’t sound like fair use to me.
Either way, having photos used without permission or payment is clearly discouraging her, and that’s exactly what copyright aims to prevent. As the Constitution says: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Good post. I mean that is “fair use,” “artistic license,” “parody,” and the one picture is only displayed, what 1% of the time span of the entire video. Crazy. But this sour grapes photographer and her jackass lawyer, who should have advised her better and/or refused to be the tool of her unjustified attack, did get publicity, although I would say bad publicity. The only supporters are that angry mob of, let me hazard a guess, fellow sour grapes types. You reap what you sew, folks. Joke: 99% of lawyers give the rest a bad name.
there can be no “attention” without attribution.
Duh.
No credit for the copyright lawyer quoted which is funny. I’d like to know who s/he was and exactly what was said.
What an unfun loser. That photo wasn’t even very good. I hope people shun her at SF tech events.
Mike….you forgot something damn important.
Fair use does not apply to the work as a whole; it applies to the IP being appropriated. Whether the video as a whole even qualifies as a parody as one thing; whether they could have included the photo is another issue that depends on the outcome of the first.
If the video is a parody, then it is fair use to use images related to that parody. Your lawyer buddy should have mentioned: the appropriated IP *must be necessary to the parody* to be covered by fair use. After all, there’s no fair use to protect if the appropriated IP is just incidental to the parody.
Here, the parody is of a song. The images are not necessary to the parody; many of them aren’t even relevant.
Those pictures of her are amateur snapshots; I take the same ones every holiday. But hey, if you are clever enough to make a living with that.
Check some professional pics on a serious photo site (not that flickr toy) instead.
I agree with @58 William. Michael, you’re either missing something in your argument or you’ve failed to share it with us. I’d really like to get to the bottom of this “fair use” and judging from many of the comments, many people either don’t get it at all or wish all copyright would disappear. Please educate us.
Ben, notes from an interview I did with Herkko Hietannen, copyright lawyer based in Finland, for what it’s worth, Debbie
Moral rights are better known in Europe (continental) where copyright is
seen as a part of authors personality.
Moral rights include
1) the paternity right which means the right to get attribution as an author
of the work.
2) right of access. This is granted only to painters who have a right to see
how their painting is displayed or stored.
3) right of integrity. According to Berne convention author can “object to
any distortion, mutilation or other modification of, or other derogatory
action in relation to, the said work, which would be prejudicial to his
honor or reputation”.
Moral rights are generally un-waivable. This means that the author can’t
give a general permission to mutilate or give up his right for attribution.
But… they can do it if they know what the use will be
“Following the Bridgeport precedent, a federal jury earlier this year found
that producer Sean “Diddy” Combs illegally used an Ohio Players sample on a
track of The Notorious B.I.G.’s epic 1994 album Ready to Die. The jury
awarded Bridgeport a $4-million judgment, and the judge in that case ordered
the removal of the albums off the shelves”
http://www.copycense.com/2007/.....egist.html
In some countries there is no such thing as ‘fair use’.
I just had a chat with a copyright lawyer tonight and they didn’t feel quite so strongly as the fellow Mike spoke with. Some background from Stanford Law:
http://fairuse.stanford.edu/Co.....9/9-b.html
As far as I can tell, the only that’s clear about fair use is that it is unclear and not strictly defined.
It doesn’t matter what you think of the photographer or the quality of her work. Or that many of you think she should have just let this go and benefit from the viral status of this video. Not the point. Nor is this about money. The vidder did not have permission to use her work. Period.
Why is her right to control what happens to her work of less importance than your right to enjoy what was/is admittedly a great video (that I personally forwarded to a ton of people before this whole battle began)? I don’t think the tech community (of which I am a part) can truly appreciate the issues with image theft and copyright infringement the artistic community (of which I am also a part) is dealing with on a daily basis in the digital era. I know there are people that say, Boo Hoo, then don’t put your art (or writing or photography or music) online if you don’t want people to steal it. But isn’t that giving more respect to the thieves than the content creators? This isn’t some great open-source mashup we’re talking about. There’s no difference between code and a photograph. We shouldn’t be clamoring for such an erosion of ownership rights just because we all loved the end result. Permission is everything!
Yea the photo was already paid for, she got paid the first time round when Wired used it, and its only a f/….. photo. No unique value, not hard to get, already published and seen by thousands.
Clearly I think she has handled it very badly, and she comes across as a winning vicious little b……/ So now she had a her 15 minutes too, albeit she hasn’t done herself any favors.
For those who hadn’t got a chance to see it:
http://ca.youtube.com/watch?v=.....U5U2spHI_4
Er Mike, aren’t you supposed to be a lawyer? Grab a clue, man.
Those who can, create. Those who can’t, steal.
Then the thieves whine about the law being unfair. We’ll see how serious Richter Scales are about their “art”. It’s easy to re-edit it with the photo removed. If they fail to do this, then they just want to be martyrs.
Ahh, actually Lane specifically says on flickr, “…I work hard at what I do and want to be paid, period.” and finishes her post with, “Matt, I have a paypal account… ” (apparently the videographer works at paypal).
I finally broke down and watched the video and I completely missed the photo in question. On second take, I saw it. As many have said (no I’m not going through the comments to attribute the sentiments individually), they should just pull it out and repost it, now that they got more attention for the video.
I am with Amie #69 and I feel for Lane Hartwell as she’s not News Corp she’s a small person.
Perhaps Lane’s critics should look at how to turn this round for her to demonstrate their point about how she could have rode with this and benefitted instead of allowing the mob mentality to drive her offline.
Commission a new profile photo Mike. C’mon, its Christmas…well, almost.
Maybe she is correct legally (maybe not) but what a bizarre case to make a stand. A 1one second nothing photo on a fun video.
get a clue. More savvy to blog about how her photo had been included in a Top YouTube video
Again, maybe she is write, bit her timing is pathetic
“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.”
My exact thoughts.
Side note:
After reading most of these comments I am shocked at the level of immaturity. Mike Arrington, I feel bad for you because the quality of the comments here used to be so high and now it’s just a notch higher than Digg.
The responsible party here is whoever she contacted that blew her off. They may have made the correct decision based on copyright law and fair use, but their attitude cost Richter Scales a lot of money and exposure.
Just like YouTube can hide behind the DCMA to allow copyrighted content until there is a complaint, someone who wants to change the conversation from the video to the materials in the video can make the video hard to access long enough to rile up some bloggers and keep it from the mainstream audience. She has ensured that this does not create a JibJab type windfall for Richter Scales and has made herself and copyright the focus, nobody is talking about the tech bubble as a result of this.
Actual legal arguements don’t matter as Richter Scales does not have the resources to prove their case to google and their video remains relegated to 10th tier video sharing sites only bloggers and early adopters have ever heard of.
The comments that express contempt for the value of te photo or the photgrapher fascinate me. After all, the videographer thought the image valuable enough to use. That’s like condemning a restaurant because the food is lousy and the servings are too small.
This story is inaccurate. It states that the band decided to take the video down. In reality it was deleted by YouTube responding to a DMCA takedown notice, according to the band’s own blog.
Its not a clear case of fair use but not rulling out fair use either. According to the definition of fair use as stated in the Stanford link by #68 above, based on the third point, it will not be a fair use if the portion taken is the “heart” of the work. In this case, the heart of the work was taken.
The second part of the third point talking about parody does not apply in this case. It is well summed by this comment by yesno:
http://www.wired.com/entertain.....tographers
“Parody” usually only applies when the thing you are parodying is the work itself. A song parody, for instance, is usually as much a parody of the original song, as whatever target it might skewer.
By contrast, you don’t just get to use works you otherwise wouldn’t get to use, just because you’re using them in a parody.
… however it might qualify under the fourth point, since it really didn’t deprive the copyright holder of her market. Another photo could have been used just as well, there is nothing unque about this photo that makes “profit” for the derived video, unlike the example of wooden sculptures given in the stanford 4th point of fair use.
… As far as Hartwel having greater benefit had she not filed a claim but rather gave her own attribution herself and posted the link to the video saying “this is my work”- she will still benefit from this later when all dust settles!
however, by filing the claim, she benefits TWICE, by getting all this media attention right now. And the video producers also benefit twice! AND TC benefits. so, for Hartwel, Richter Scales, and TC its a WIN-WIN-WIN, great tactics guys!! :))
Lame Hartwell, you might want to get that statement up ASAP. Right now you are the grinch who ruined the hilarious web 2.0 video.
Great thoughts here — thanks Mike.
Flip the points made above around;
Idependent artist screwed out of her rights by the bullying of the mob. Independent artist persecuted for defending herself when she questions whether her work is being used under “fair use” conditions. Powerful journalist tells artist she is wrong in her claims based on one lawyer’s advocacy opinion without any court rulings to back it up. Creative Commons community fights all efforts to allow an independent artist to opt out of Creative Commons.
Just imagine the uproar if you were told that you couldn’t contribute your work to the Creative Commons. That is what you have just done to this artist. How incredibly unfair!
The video publisher should thank YouTube. If Billy Joel’s record company hears its music, the wrath of God is going to seem gentle compared to what likely will come down on his head.
Questions for the mob: In what degree is this a parody and of what is it a parody? In what degree is it an imitation?
Billy Joel’s record company couldn’t be upset, its a parody and parodies are protected by law. Thats how Weird Al Yankovich is able to do all his music.
@commenter #73
Yes, I am aware Lane made the statement about how she wants to get paid for her work. It was a general statement. I’d assume we’d ALL want to be paid for work. But my point was money wasn’t the issue here:
the vidder used her work without permission.
That’s root of why Lane is mad. She has every right to be mad. It’s her work. She has the right to control where and how it’s published, and that right was blatantly abused. And I honestly don’t understand why this supposedly enlightened community is villifying her for it.
@David Mackey: Weird Al Yankovich gets permission and pays royalties to the original artist.
Maybe Lane’ll get sued for defamation as she’s tagged the photo ’scumbags’…RME….what a drama queen.
…and funny that she took her photos private but left this one public to squeeze whatever juice she can out of it.
I’m no lawyer so can’t say what’s right/wrong…but just her reaction makes me hope she’s mocked for all eternity.
#29 - Franky:
It worked, Chris R. hasn’t posted since.
The use isn’t PARODY. It’s SATIRE.
Satire uses one work (the photo) to make fun of something else. Here, the photo is being used to satirize the tech bubble. Satire is NOT protected as fair use. See Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
It order to be a PARODY it would have had to be making fun of the photographer’s work itself. Here, that’s not the case — the photograph was used in the process of mocking something entirely different.
It’s one thing if you think the photographer shouldn’t have a moral right to her photo in this case, but it’s another entirely to mangle copyright law in an attempt to explain yourself. Please do readers a favor and clarify the original article text.
@Amie Gillingham:
What part of “Matt, I have a paypal account… ” causes you to believe it was a “general statement”?
Please read it for yourself.
@DT: Fair Use is applicable in editorials and one could argue that this video is an editorial on the state of web technology today.
My response to the editorial is that this “bubble” does not infect the stock market, only VCs. It isn’t like last time. Everyone needs to quit being jealous they don’t know how to raise money.
“if you want to be part of the community, you have to give back to it, too.”
Let’s all hold hands and sing Kum Ba Ya.
Unfortunately I got kids to feed!
For those of you willing to work for free and willing to contribute to the community, maybe you can donate to my children’s college fund? C’mon, you don’t want my kids to end up bums loitering on the street do you?
You can dress it up all you want, but tariff avoidance is tariff avoidance.
@Fair Use: That’s not the part I was calling a general statement. And again, money isn’t the issue on which I am basing my argument. Nor is it the (sole) reason why Lane Hartwell is mad.
Her. Work. Was. Used. Without. Permission. Or. Attribution.
Let’s see…I want to parodistically argue against suicide, and in my video against it, I read the collected works of Sylvia Plath. I see…that’s fair use. Riiiigggghhhhttt!
Let me ask the question again: What is being parodied in this video? And if you do not know the definition of parody that existed before you grabbed the word and used it, keep silent for a century or two.
If the photo had been taken by Thomas Hawk, Dave Sifry, or Robert Scoble, without permission or attribution, and instead of a lampoon of the tech industry it went viral as NeoNazi propaganda–whose side of the argument of rights would you all come down on?
Is the only real difference the fact that we all enjoyed and approved of the end result??
Bringing in lawyers and ruining fun…copyright…trademark…rings a bell.
Someone needs to reform copyright law. It’s overly complex, with too many gray areas. So if this photographer needs attribution, what about the song the video is played to? The song isn’t necessary to the satire. It’s just a catchy tune…
I also wanted to say
Amie, agree with everything you’ve said. And not just because you’re a woman.
@Fair Use
You’re again missing the key connection - to be editorial fair use, the editorial has to be about the copyrighted work that you are commenting on. Newspapers are undoubtedly editorial, but they still have to pay photographers for their photos. The distinction is that if the New York Times was running an article ABOUT The Golden Compass then it could make fair use of an image from The Golden Compass in the context of the article. The New York Times could NOT just copy the LA Times’ stories.
@{??}
Somebody else said that the common-sense definition of “parody” is more broad than the legal definition. That’s all well and good, but the problem is that the legal definition of “fair use” depends on the legal definition of “parody.” In effect, “fair use” and “parody” are both legal jargon with unique meaning inside the law. If you want to look at this as OOP then we’re looking at law.fairuse and law.parody instead of the general definitions.
Shelley - shouldn’t you attribute the source that found that for you? Quit being so whiney and stop trying to make this about you. (cause yeah…by passive aggressively referencing an argument held somewhere else you’re doing just that)
And is that ‘photo’ used a screen shot of a site or the actual photo(too lazy to go back to look again) and would that make a difference? (since it would actually be a shot of a site that “legally” uses a photo vs. the actual photo)
She just isn’t seeing the big picture. I think it was smart of her to sue, and get all the notoriety that goes with it and get her name out there and known. Seriously, what is the big f***ing deal with that one shot she took. She would be much better off to retract her lawsuit and “donate” that pic to the cause. She would get a lot more goodwill and money directed her way if she does that.
With all the good and bad that comes from posting/promoting your content on the internet, I think you have to look at the big picture and pick your battles. Since the Bubble video seemed for fun (maybe promotion, indirectly) with no obvious monetary gain and was not malicious in tone and the photo in question had a relatively small effect on the overall, asking for credit seems appropriate, but hiring a lawyer for damages a bit much. If every person represented therein and every content provider ’sampled’ required releases and compensation it would no doubt never been made which would be unfortunate.
The photog can ask for whatever she wants, it’s her stuff. And who know all the factors involved, maybe the Richter Scales were dicks about it. But so far she appears to be making the right point in the wrong context. Also, for someone who has “avoided watermarking my photos because I think it kind of wrecks the beauty of an image”, I think she has to bite the bullet and get more realistic about her priorities. You can’t assume millions of strangers on the internet will treat you and your work exactly the way you like. A watermark or low-rez version says you’re concerned about usage issues. Though it might somewhat damper the beauty of Owen Thomas, it might make the photo thief think twice about using it or more inclined to get the rights sorted out.
good post, colombene and “pick your battles” has popped in my head a few times as I’ve been reading up on this whole thing (somehow missed it till today….and even read Scroble’s post the other day but didn’t give it much thought) Was it because as the video got more popular Lane got more pissed? All that missed opportunity? (and I do think she may have a point but went about things the wrong way and hasn’t handled things well, imo)
I wasn’t able to check out her photos before she went private but wonder if she watermarked? She seemed to promote the idea to a fellow contact here:
http://flickr.com/photos/keylowerock/2079434968/
assuming due to this:
http://flickr.com/photos/keylowerock/2087600262/