“The Bubble” Is Back

Wait isn’t that me in a blue shirt? Honey…call the lawyer!

That provided a good break from my reality. Now I have to get back into the bubble I live in.

Sounds like everybody is happier in the end and the producers of the video learned a valuable lesson about courtesy and asking for permission before using the work of others. They might be right or wrong about fair use in the end (I’m pretty sure that it was NOT fair use, since they took the entire photograph and worked it into a commercial video without any transformation of the photograph whatsoever), but they could have avoided the whole mess by simply being good people and asking a fellow artist if they could use her work. It might have been “a pain” to actually ask each person’s work they were lifting, but I’m sure it was no less work for each artist to actually produce the work they piggybacked on.

Those credits are freaking wonky, I think I saw one name and it was Om’s.

Less enjoyable to watch now I must say….

Well I hope Lame Hartwell is happy, now the world never has to hear of her again.

best video ever

Kumbaya!

I’ve watched this multiple times now and I still enjoy it. Nice to see it back on YouTube.

That was a really cool video… Was great to watch!!

And congratulations on being the 2nd most popular web celebrity!! Wherez the bash for that achievement??

Cool! Love that!

I Love It, great one !!!
(but hopefully will not come true)

A funny, relaxing way to reminisce about — and let me be very frank — all the crap we all went through. FANTASTIC video, captures the essence of what is happening and puts it in perspective to what happened circa March 2000. But at least when this bubble bursts, it will be more like a firecracker than a nuclear warhead.

Interesting video.

How about that worthless paper we call the “Greenback?” You know, backed by “thin air” and printed by that other worthless entity we call the Federal Reserve.

In the end, an upcoming bubble nor one’s richest will matter when it’s all based on phony play money. Things only have value because we think it does — Fool the mind to believe and you can achieve anything.

F the bubble, weather there is one or not - just play your cards right, and you live to talk about it

Hi Mike,

My last name is spelled Hartwell, and I did not complain via my lawyer, I wrote them directly. I only contacted an attorney after they informed me that they had one.

Also, my response to their new version is up here: http://fetching.net/2007/12/my.....les-video/

That’s a good video.

Lane Hartwell must be joking, right? RIGHT??

“I will be sending the band an invoice for their use of my image in the first version of the video.”

This is just plain ridiculous. Yes, she must be really pissed because her photo was viewed 1 million times. That’s so bad… Poor girl….

funny video

Heh, if Lane gets paid I wanna get paid too. After all they used my video, my likeness, and made fun of me in this video.

I’m joking!

In honor of all this I just changed all my Flickr photos to be “stealable.” I want you to use my content for free in whatever you want to do. If you spam with it, though, I reserve the right to make fun of you. I still won’t charge you, though.

I think it really is lame to take pictures of people (who don’t get a cut of the profits) at parties, without being commissioned, and then send in invoices for that work when it gets used in a parody video.

If photographers are getting paid to take pictures of me, why shouldn’t we get a cut too as subjects? I didn’t sign a model release for commercial work when Lane and other people take pictures of me at parties like she did of Owen Thomas. Did Owen sign a model release? Did he approve for his photo to be used for commercial purposes?

I think that when I do an event or party I’m going to only let photographers in who freely distribute their work without expectations that they’ll get compensated for its use.

I think you are getting way out of hand Lane. Just draw a line under the episode and be done with it as its getting embarrassing

Well said Robert Scoble

Invoice for use of the image !!? The reaction of the internets to this will be fun to watch.

nice move Lane, now hundreds of thousands(millions?) of people know who you are

well played

Lane Hardwell has officially had her 15 minutes of fame. Now all we have to do is remember the correct spelling of her name and she won’t sue us either.

Well played Halfwell, now any potential client who google’s your name will instantly stay away from your troublemaking business attitude.

Sombody please let this crap photog take you to court and bring some clarity to fair use. As Scoble states, she is trying to capitalize on taking pics at parties. Any friend of mine that did that would be immediately de-friended. What kind of world do we live in? This is total commodity photo taking. Better start looking for a new job when your friend at wired gets fired, Lane.

Pure Drivel!

Where’s that Shelley freak?
You all need to get real lives and real jobs soon.

P.S. You can put “took picture of Owen Thomas” on your resume too, it’ll be sure to up your salary…

Brilliant video!

That video is hilarious.

LOL LOL LOL.
Sweet.

Liked it.

Lane is now asking for payment for the first rendition of this video because she got left out in this one. Someone give this person a job, she obviously needs one. Come on, she ook a picture of Owen Thomas and nobody has one of those. They are very rare and hers is the best ever.

I mean come on, it is for a good cause (some charity) and her lawyer fees?

I think she needs to pay those fees herself to remind herself this was horrible usage and abuse of the DMCA.

All the people that have a vested interest (lazy, uncreative photographers) encouraged this, so maybe they need to pay too.

Dear EFF, please take this to court. We need to set the record straight. The lazy folk are trying to justify a picture of some blogger at a party as creative and artistic.
Absolutely ridiculous.

Great point where you say unmolested and “UNVIEWED”

Well said, Robert Scoble!

This could have gone away but I see Lame is seeking a few more seconds out of it by sending an invoice!?!?
All of this for ONE second of a photograph in a video that is leaning towards “fair use”.

Astounded by her response and thinking this is starting to be less about principle and more about exposure (heh…) and money.

First it was “pay me because you used it and I deserve payment…that’s how I roll. Fair use, Fair schmuse” but at the same time “They could have easily apologized, removed the video from YouTube and re-edited without my image and reposted.” but when the RS *gasp* refer to a lawyer because somebody is telling them they owe money and they aren’t sure if said crazy person knows what they’re talking about…she’s offended by their “cavalier attitude” and goes with the smackdown pulldown. Not everybody is on your time table, Lame. They re-edited without your image and posted…and it could have SHOULD have been the end of it…

You might want to see about getting that day job back…doesn’t sound like you’re cut out for this community.

Hey, you know what they say about jokes here in Finland?
It only hurts if there’s some thruth to it… say pop!

Extremely well said Scoble.

Mike,
Your Techcrunch content gets republished on a lot of blogs without attribution to you or techcrunch. But I guess that’s OK too.

Well I don’t know about you but this has ruined it for me. I only watched it to see Harball’s art. I suggest she hires Richard Figaro (or whatever his name was), Ace Attorney and Pet Detective, to get the million dollars coming to her and her ‘chosen charity’.

You know, I have a theory. The video illustrates very well how everyone in Web 2.0 is expecting money for nothing, buying into massive valuations for businesses that don’t actually make any money and have little more than a silly name and another variation on Facebook/Digg. What on earth could be more ridiculous than that? Well, probably professional photographers. A million photographers take a million photos of something that happens a million times a day (like a wedding or a school disco, what the Americans call a ‘prom’) and each believes that each single creation is art. And they believe that the fabulous prices they’re allowed to charge the wedding guests and mothers of schoolgirls make their art expensive art, at that. (In fact the prices are all about status and group pressure - no-one is going to be the only mother to tell her child that she won’t stump up for a professional photo because her own digital camera will do the job perfectly well.) Hence the massive feeling of entitlement revolving around ‘their’ photos. To us, a picture of a party used for one second in an amateur video is a picture of a party like any other. To them, it’s thousands of dollars of lost income.

So my theory is that Hardwel is a fiction, created by Mike Arrington to distract us from the ridiculousness of the Web 2.0 biscuit bash. (If you don’t know what that is, find a friend who was at an English boarding school and ask him. Suffice it to say that you don’t want to be the one who finishes last and has to eat the biscuit, but either the entrepreneurs or the VCs or the consumers are going to be left holding it one day). Everyone’s talking about fair use instead of speculating about the video’s actual point. Brilliant.

Incidentally, I’m fully aware that photography can be art and that some photographs belong up there with the Mona Lisa in the halls of our collective cultural consciousness. None of them were taken for a ridiculous fee at a wedding or school disco, though.

@Ronald Lewis

So what is given value, that isn’t just fabricated in our heads? Who’s to say gold has any value? It’s just a rock from the ground.

Lame Hartwel… you really know how to piss people off. I hope no one ever uses any of your crappy images.

People should remember the fact that Weird Al asks for permission for every song.

Fair use is not a clear cut legal argument, and smart commercial content producers of parody or satire ask permission to avoid the risk of a lawsuit.

Some may a Lane Hartwell shirt…talk about a fun hater.

Someone make…god, it’s early.

This entire controversy is yet another non-event that only has significance within the inbred blogsphere. One female “A-list” blogger told me that this whole issue was “important to women in tech” and “is a major issue with regard to open media web”.
Huh?
I think we need to move along to the more important issues of the day, namely will you or won’t you be serving eggnog at your holiday party?

In response to Scoble’s quips about photo subject’s consent & the photog getting paid: If the subject poses willingly for the camera, that is consent. That is saying “Yes, you can have my image and even make money for it”

The art of photography and images will be around a lot longer than web app companies, their founders, their users and certainly longer than TechCrunch.

“People who post their digital photos online should be able to do so secure in knowing that their imagery will not be used for commercial purposes without their permission.”

How is using a photo in a video that’s available for free and that made zero money “for commercial purposes”?

I’m going to send Lane an invoice for the amount of time I’ve wasted over the last several days reading about her dumb ass. That will be $500 please.

everytime I see this I laugh

Mike, you took a lot of heat over your first post. I am happy to see that you have been vindicated on all fronts - the abuse of the DMCA on the original takedown and the “hurt feelings” characterization. You nailed it, Scoble nailed it - the invoice is the most ridiculous thing ever. I thought all she wanted was either the photo removed or credit? Guess not. Anyone defending her before has to feel very stupid right now.

I think the photographer was a little shrill, yes, but I don’t see why attribution should be a problem. I bet if I were to repost the content from this site without attribution I would hear something from Arrington. Right, Mike?

Mike - every post we write is copied to dozens of spam blogs without attribution. I couldn’t care less, and I certainly am not hiring lawyers to bully people.

love the mp3, thanks for it. it is my ringtone now.

First of all, name-calling is cheap and pretty childish. If you agree or disagree with an issue, address the issue.

On to the issue …

If you upload a photo to a hosting service, like Flickr, and you specify that you are NOT releasing the image into the public domain (i.e., you are retaining all rights) and someone then takes that image and uses it without permission and/or payment, then that person has, quite simply, committed an illegal act.

Arguments about fair use are unsettled in general, and particularly here. (Fair use isn’t clear to me in this case.)

I also don’t think the invoice thing will work, but it seems clear that “Richter Scales” was in the wrong. It’s frustrating and baffling to me when people have a hard time understanding this.

Now, had the photo been CC licensed or in the public domain, this would be a different discussion. My understanding, however, is that it was not, and that all rights were reserved.

The lack of respect for other people’s work is a depressing, and increasing, blight.

hah she sent them an invoice. can we get Richter Scales to post it online??

Description of work: took a picture of a guy at a party
Hours billed: .0003
Total: $10

Robert Scoble writes, “I think it really is lame to take pictures of people (who don’t get a cut of the profits) at parties, without being commissioned, and then send in invoices for that work when it gets used in a parody video.”

If this is the case, you really have no beef with Hartwell. A quick look into the history of the photo in question shows that Hartwell is a Wired photographer. Wired didn’t buy the image from her after the party was over. She is not paparazzi. They paid her to be at the party, presumably to take pictures of “tech people”.

Scoble also writes, “I think that when I do an event or party I’m going to only let photographers in who freely distribute their work without expectations that they’ll get compensated for its use”.

I can agree with this. If you’re throwing the party, you should be allowed to control the guest list…however, again, I don’t see how this applies to Hartwell. I’m guessing she was not a party crasher. I’m only loosely involved in the tech community, but I can easily imagine the promoters of the party in question inviting a web publication such as Wired to showcase said event.

Just my 2 cents.

get a life.

I first said the sentence “I will be sending the band an invoice” i created this sentence. it is published in my blog in the web archive.

send me a check first before you say this to them. if you generate income based on this sentence I have said, send me a cut of ur income too.

erm … “ew” clearly has no understanding of how copyright or fair use works …

“not a lawyer but…” clearly is not a lawyer.

This would make a great LOL Cat image:

“I’m in ur Flickr

Stealin’ ur pics.”

Did she watermark the image? Is she an interwebs n00b? Does she know that you can right-click and save practically anything?

@Steve: The ability to do something does not equal the (legal, ethical, or moral) right to do something. I have the ability to take a kitchen knife and stab my neighbor … that doesn’t mean I should or that it’s OK.

–>Does she know that you can right-click and save practically anything?

Did you know that you can pick just about anything out of somebody’s back pocket on the street? And that you can stuff merchandise in your pants in a store?

I know those aren’t perfect analogies for what happened here, but the point is that just because something is physically possible doesn’t mean that we have to approve of it taking place. It’s very easy to shoplift, but I’d much rather blame the thief than the store when it happens.

Glad to see so many creative types coming out against copyright and the first amendment. Refreshing.

A photographer working to create and sell editorial images is a journalist. Unless they plan to have a gallery show and sell prints, they do not need model releases. That is supported by a little thing called the Constitution.

A commercial band making a song and video however does need model releases and music releases and image copyright clearances.

This type of “it is the Internet, anything goes screw the copyright holder’ reaction is exactly why Big Media keeps pushing so hard to strengthen and enforce byzantine and punitive copyright laws.

If you want to rage against the machine stick to the RIAA and the multi-nationals not individual content creators who need to get every $$ they can out of their work - and are usually themselves exploited by the mega-copyright holders of the world.

Also @ steve:

The picture almost certainly was taken from the Wired website, not flickr.

Type “owen thomas” into google images. Yep, first listing is the photo in question. Pretty sure wired wouldn’t plaster a lane hartwell copyright symbol onto an image they paid for.

@ None … thanks. Very well said.

You all need to get over yourselves

Hello,

I would like to know from which top 10 school did Michael Arrington get his law degree from?

How much have you studied this Michael, other than talking to two “close friends” who are attorneys about this?

I am surprised by your arrogance, that this being a blog about internet tech, and here you are talking as if you are on some research committee of a copyright lawyers association.

I strongly advise everyone not to be deluded into hell fire by Michael’s misleading and uneducated interpretations of law, and actually consult a licensed lawyer in there matters, not a tech blogger.

I’m with you on all your points but in reality the internet is still the “Wild West atmosphere” it was 10 years ago and right-click CAN be disabled on any webpage. Why isn’t she siccing attorneys at Wired for not protecting her content since it was so obviously important to her? Why has it never occurred to her that somebody might cadge her images?

Finally, how is a photo of somebody attending a party “art”?

@ Where did Michael Arrington get his Law Degree from?

WTF?

@62: Ummm, you do know that Michael Arrington graduated from Stanford law school and practiced law for several years, right?

The best video ever. Well Said. Great job.

LOL @#55!

I don’t thinks attribution was ever her main concern. It was always payment…from the flickr post to the first official statement (that didn’t say anything new).

Also…from her blog:
http://fetching.net/

“People have asked me why I’m taking this action. When I find someone using my work without my permission, ‘I ask them to remove it or pay a fee’. They usually remove it and we are finished. The band did not remove the image from the video when I brought it to their attention and instead they told me they had the right to use it. ”

So now I guess she removes it AND they pay a fee. Does this mean they can go back to using the original if they pay?

She say in her latest posting:

“I question whether they would have acted differently if they’d been contacted by Billy Joel’s management or the stock photo agency Getty Images.”

We also have to question whether she would be taking it this far had the video been viewed 100 times vs. 1 million. Did the other “thieves” back down/retract in whatever alloted space of time she deemed appropriate?
The original was pulled and in the meantime re-edited. Why wasn’t that enough?

For some reason, she will not be happy till some amount of money is exchanged. Why couldn’t the discussion be enough? Lord knows people are going to think twice before using a photo for anything. The RS learned a lesson…she made her point. We could all be over analyzing something else by now…but noooooo…..

Lane has every right ask for payment for her image. The band did not have permission to use it. They stoled it. They were wrong, Lane was write, pay the fee.

Loved the video, just have one question: how much did you have to pay to get your photo be the exact middle frame on that music video, Mike?

TRS used one of my photos in their video too. It was a photo of Om and it wasn’t attributed nor was I asked permission.

I thought the video was funny and certainly their use of my photo was fair use. I’m glad they included my imagery in their production.

In no way do I feel economically deprived by their use.

I think that fair use ought be protected to ensure a fertile landscape for new artists who would seek to use imagery of our times and our culture to create new art. Mashup work is an important new genre and one that should be promoted, not shut down.

I think it is chilling to see the DMCA misused by those who don’t understand fair use.

I’ve always been very open to others using the photographs that I produce. In fact the only organization I’ve ever requested not to use my photographs was Valleywag — and that’s because I got tired of them printing so many lies and didn’t want it to reflect poorly on me.

Certainly there are legitimate cases where copyright ought to be enforced. Fair use inclusion of a photo briefly in a parody video is not one of them.

Thermal pollution happens when water in rivers, lakes, the ocean, and streams experience a harmful increase in temperatures. This temperature rise can have a negative impact, killing the native fish and plant life. If the temperature does not kill them, it will drive them out in areas they should not be.

I remixed the video and republished in 2 minutes flat

http://tinyurl.com/yqb27u

dont you just love the web2.0 gadgetrs

@none : you are missing the point. These guys are not ‘commercial band’ and nobody made any money of that video - and never will. The intend there was not to make money, the intend there was just to have fun! bunch of people got together and had FUN! and then they taped it and then it got popular!

Wake up! what if bunch of kids get together, sing Madonna’s song, then someone tapes it, posts it to youtube and it gets popular? Will these kids get an invoice from Madonna?

Look at the intend guys!

@ Robert Scoble #19

I agree with you that when photographers shoot people at events or anywhere for that matter, whether they are commissioned or not, may need to get model releases in many cases if they want to use or sell their images commercially, (there are fairly well defined guidelines and laws that govern this). With all due respect, I find your position rather hypocritical in that you film people at public events all of the time, without asking permission or getting model releases, and then post them on PodTech’s web site, the for profit company you work for. How is this any different from what Lane is doing shooting people and using/selling the images for commercial purposes?

@Jason #36

Yes gold has no value, it is just your imagination. Please send me all your gold so you won’t have to worry about it dragging down the value of your estate.

JeffH: the difference is that I’m cool with having my work reused (my video was used in this Bubble video, in fact). I’d like attribution, but don’t require it. I don’t post videos of people who don’t give me permission, by the way, to video them and when my camera is on there’s an implicit contract to be on my show. On the other hand, I’ve had my picture taken thousands of times at parties and events and there’s never such a contract with them. usually I have no clue what the images are going to be used for, or where.

Ha, ha, ha! All you dopes that think stealing an artist’s work is cool–the jokes on you. What’s great about that video is that it’s making fun of your own stupidity–the web 2.0 culture you like to think is so irreverent.

Flickr, Facelift, Yousnooze, Technorazzi–they’ve swindled every one of you. The irony is that you don’t feel the least bit cheated. They make the machine, and you put in free content that they turn around and sell for billions of dollars and you don’t get a red cent in return. Now that’s funny!

You’re all a bunch hopeless lemmings.

PP

So right, dude. Look at this site for example. There’s tons of advertising. A million hits? That’s a lot of dough. Whoa, I want some.

Richter Scales: ass for not asking permission/crediting
Lane Hartwell: ass for taking down the video.

@ Robert Scoble,

I just wanted to address a few things here:

“I think it really is lame to take pictures of people (who don’t get a cut of the profits) at parties, without being commissioned, and then send in invoices for that work when it gets used in a parody video.”

I was commissioned, by Wired News to shoot the party in question. I was an invited guest, a member of the media. I had the permission of the organizers to photograph the event and use it for editorial purposes. GigaOm was interested in using them afterwards and I had to explain to them that Wired had exclusive rights to those images for 90 days and I did not have permission to allow that. There are even restrictions on me for how I can use them in that period. If you had asked me to not take your photo there, I would have respected your wishes. However if you are on public property, that’s a whole different story. Ask your buddy Thomas Hawk about that. Personally, if a person doesn’t want me to photograph them, I don’t.

“If photographers are getting paid to take pictures of me, why shouldn’t we get a cut too as subjects? I didn’t sign a model release for commercial work when Lane and other people take pictures of me at parties like she did of Owen Thomas. Did Owen sign a model release? Did he approve for his photo to be used for commercial purposes?”

I am not using Owen’s photo for commercial purposes. In fact, the Richter Scales are the ones that used his photo for commercial purposes when they posted a video that drove traffic to a site where they sell a CD of their music and concert tickets. I’m surprised you don’t have an understanding of the difference between editorial and commercial. So while I can’t sell a photo of you to advertise, say, Nike shoes, I can sell a photo of you as editorial stock. I do not require a model release for such usage. I can assure you I have never sold a photo of anyone as commercial stock. Period. Check out my flickr page or my blog. You’ll find no advertising for anything…not even for me as a photographer for hire or that I have prints for sale. Then check out the Richter Scales page and tell me what you see. Adverts for a $15.00 CD. Adverts for concerts. Check out the Richter Scales YouTube profile page, here: http://youtube.com/profile?user=TheRichterScales What do you see? Again, more advertising for their CD and shows. They aren’t a non profit charity. So no, Owen never gave permission to be used to sell their CDs. And they took my rights to protect his image from unauthorized commercial use out of my hands when they took an all rights reserved image without asking first. That has nothing to do with me. Think about it. This is part of what I have been saying since day one of this whole debate.

“I think that when I do an event or party I’m going to only let photographers in who freely distribute their work without expectations that they’ll get compensated for its use.”

You should try that, the next time someone from the media wants to shoot your event. Tell, say, Conde Net, that you expect them to give up their work for free. Tell the writer and photographer that you are going to take his or her work and use it for your own purposes, commercial or otherwise, without crediting them or compensating them. In essence what you are starting to ask is that the media has to compensate you for the privilege to shoot your events, or subsidize your event photography. Which is unethical and would not fly. On the other hand, if you want to hire a photographer for your event, and those are the terms you specify (work for hire) or a buyout of images, the rates are higher than if you just want to license the images.

Finally, licensing images is how photographers make money. I didn’t invent the system, I just have to play by the rules. You might want to educate yourself about that a little bit before spouting off. Here’s some links to help you:

Catagories of Photography Use: http://www.asmp.org/commerce/l...../index.php
A copyright primer: http://www.asmp.org/commerce/l.....yright.php
What is a license? http://www.asmp.org/commerce/l.....g/what.php
Licensing terms: http://www.asmp.org/commerce/l...../terms.php

It’s hard for most people to understand licensing photography. It’s a little complicated. But even if you pay a photographer to shoot something for you, unless otherwise agreed upon, the photographer owns the images and you essentially rent them.

I think a lot of the hatred here springs from the fact that people don’t understand the business of photography and how it is billed. Fair enough…But if you are going to point the finger at me for doing something that everyone in the photography business does, and say that I’m doing something unusual or unethical, I’m suggesting you educate yourself.

Regards,
Lane

Bravo to To Thomas Hawk and Robert Scoble, two prominent photographer and video maker. It’s refreshing to hear your stance on the issue of “fair use”, which is very different from Ms. Hartwell’s.

To Ms. Hartwell: Do us a favor, if Richter Scales does not pay your invoice, please take them to court. I’d like to see you and your lawyer (where did he get his law degree?) stand up in court and argue that Richter Scales owes you millions (you need to add punitive damage, emotional distress, etc) for using a photograph you took in a party, of one Owen Thomas, who might not have given you explicit consent to take his picture.

To Owen Thomas: should Ms. Hartwell win the million-dollar lawsuit against Richter Scales, do please sue Ms. Hartwell for your share of the profits.

@a sober note –> I’d like to see you and your lawyer [ad hom removed] stand up in court and argue that Richter Scales owes you millions . . . for using a photograph you took in a party, of one Owen Thomas, who might not have given you explicit consent to take his picture.

No doubt that there’s no case for “millions of dollars” but there is certainly a very clear-cut case for hundreds or thousands:

1. Lane took the photo.

2. Copyright is completely automatic; Lane became the owner of the copyright in the photo the moment she took it.

3. A photograph is sufficiently artistic to get copyright protection; copyright law doesn’t care if it’s a party photo or an Ansel Adams as long as there was some creativity that went into it. Choosing a subject, angle, zoom, lens, exposure, crop, processing, etc is far more than is required.

4. The copyrighted work was used without permission. That’s copyright infringement. Now the burden is on Richter to prove a defense to copyright infringement.

5. Fair use probably does not apply. The video took the entire photograph and did not transform the actual photograph in any way. While the video is funny, it is not a “parody” in the sense of fair use because “parody” for the purpose of fair use applies only to parodies of the copyrighted work. See Dr. Seuss v. Penguin Books. It would be a parody if the video made fun of Lane’s photo, but the video made fun of something completely different. The use of the video is arguably commercial because Youtube certainly is commercial and profits from the video.

6. Lane normally sells her photos for hundreds, if not thousands, of dollars. She’s a commercial photographer, that’s what she does for a living. That’s arguably the measure of damages–how much would Richter had to have paid to her if they had asked rather than taken?

7. If Lane registered the copyright in the photo before the video went up, then she’s automatically entitled to tens of thousands of dollars in statutory damages. It doesn’t matter to the law whether it’s just a party photo or a Jackson Pollock; if a registered copyright is infringed then damages are automatically calculated by 17 U.S.C. 504 and range from $750 to $30,000 per infringing use.

8. The fact that Owen Thomas didn’t get a model release to Lane probably hurts Richter more than Lane. By posing Owen arguably gave Lane permission to use the photo in the normal course of Lane’s business–by posting it on her site and so forth. But Richter may have infringed Lane’s “right of publicity” (a creation of California law) by using it in the context of selling the band’s music. If there’s a model release problem, it’s between Owen and Richter, not Owen and Lane. Lane owns the copyright in the image even if Owen didn’t consent to it being taken. She might not be able to use it in any way if she doesn’t have a sufficient model release, but she is the copyright owner without doubt.

I think Lane’s lawyer is far better than “a sober note” at law. Where, in fact, did YOU go to law school? Please do tell.

looks like the Richter Scales are about to take another one on the chin.

ramona rosales is a fairly accomplished photog.

http://www.pdnpulse.com/

I like the way Robert Scoble has handled this, as well as the way Michael Arrington has handled this as well as his initial encounters with Loren Feldman.

In the final analysis, it solidifies your respective positions as the two top tech bloggers, even if you guys are a bit over the top at times. But it’s going out on a limb that makes you vulnerable, but it’s also going out on a limb that gets you included in such videos, too — and helps make you guys + Steve Rubel the top three tech bloggers.

To DT,

Thanks for your detailed (albeit excruciatingly long) answer to my sarcasm-laden legal scenario.

To answer your question regarding my legal credential: I might have played a lawyer on TV, but I certainly ain’t one myself.

Your “lawyerly” reply indicates that you yourself aren’t confident in your own argument:

You said, “5. Fair use ‘probably’ does not apply…”, and “8. The fact that Owen Thomas didn’t get a model release to Lane ‘probably’ hurts Richter more than Lane…”

“Probably”? If you were to argue the case on behalf of Ms. Hartwell, the judge and the jury would be very amused to hear you say “probably” multiple times.

some folks like THawk and RScoble are very open to sharing, others like LHartwell and RRosales aren’t so keen on sharing.

The problem is THawk and RScoble want to impose their views of sharing on LHartwell and RRosales. That’s un-American. No one is forcing you to NOT share, so don’t force them to share.

Lane Hartwell doesn’t sound like a very friendly photog. She’s giving us friendly photogs a bad name.

In her blog on her work being stolen (http://fetching.net/2007/10/please-dont-steal-my-work/) she writes:

“everyday I am hit up with requests for me to give people photos I have shot of them. I’ll be shooting an event and people will push their business cards on me and tell me to “email them the shots”. When I politely explain that I won’t be doing that, and why I won’t be doing that, they usually get nasty with me. If I tell them they can purchase a file or print from me, 9 times out of 10 I never hear back from them.”

that’s just ridiculous. you photograph a person but don’t have the courtesy to let them have the photo? sell the photo to the magazine, but give the guy you photographed a free copy! that’s just being retarded.

@a sober note

In front of a jury of course no lawyer would say “probably.”

But we’re civilized people who can admit in a friendly conversation that the actions of the judge and jury aren’t certain. I’m pretty sure that I’m right, but I have no need to project false confidence by taking “probably” out of the statement. There are some things that are pretty certain (that Lane took the photo) and some that aren’t (that the judge will get it right).

Only two things are sure, death and taxes. So far lawyers control only one, but we’re working on the other…

@DT #82 Agree with your comment. It is one of the few realistic, down to earth comments on this topic I have seen here or elsewere on the web.

I do not understand why many people seem to think the web is a free-or-all where you can take anything you can find, and use it for what ever you want, without asking permission or compensating the originator of the content. Kudos to those of you who want to share your images, videos or other assets. That’s one of the things that makes the web great. But there are those who do not wish to share or would like attribution or compensation for their efforts and work. I think everyone needs to respect that fact.

Regarding point 8. If Lane had never intended to sell or use the photo in question for commercial purposes then she would never need a model release. Editorial usage of the photo is legal without a release, as is posting a personal photo on one’s personal blog or in ones personal photo sharing account. So you are correct in asserting that Richter Scales may have opened themselves up to liability from all of the people who’s images appeared in the video, assuming that a court would define the video as a commercial usage of the content. Looks like another can of worms…

It’s been a while since I researched copyright law, and I am definitely not a lawyer, but I was always under the impression that while copyright is automatic, you cannot seek monetary damages unless the copyright is registered - merely cease and desist… which the Richter Scales *did*

Of course, I could also be totally wrong. Eh. *shrug*

Ms. Hartwell’s comments are funny, after a fashion, despite the apparent effort she’s put into them. Let’s pull three points together:

(a) [NOT MS HARTWELL] ‘If the subject poses willingly for the camera, that is consent. That is saying “Yes, you can have my image and even make money for it”‘

(b) Ms. Hartwell, about taking photos in public places: “If you had asked me to not take your photo there, I would have respected your wishes.”

(c) Ms. Hartwell, on her blog: “everyday I am hit up with requests for me to give people photos I have shot of them. I’ll be shooting an event and people will push their business cards on me and tell me to “email them the shots”. When I politely explain that I won’t be doing that, and why I won’t be doing that, they usually get nasty with me. If I tell them they can purchase a file or print from me, 9 times out of 10 I never hear back from them.”

Here’s my take:
- suppose Ms. Hartwell propositioned her subjects with “Hi, I’m Lane Hartwell. Would you mind posing for a photo? If you want to see the photo I took, you can buy a license from me at my hourly rate; email me, I won’t be emailing you.”…how many folks at these parties — the same people getting upset a bit later — would actually pose for her? It seems like a lot less — the fact that she notices lots of people getting upset once she post-facto discloses the terms of her photo-taking proves this, I think.

I don’t mean to pick on Ms. Hartwell too much — I’m certain similar “shoot first, inform later” policies are the norm in much of the professional photography world — but this state of affairs is still hilarious, as it reduces Ms. Hartwell’s defense to basically “I only take photos of people who’ve agreed to let me take their photo; I only disclose my terms and conditions after I’ve gotten the photo from them; a lot of time people get upset when they find out what those terms and conditions are, but hey! I’m just doing what everyone else does in the photo business, so there!”.

So, why make this point at such great length? As a bit of a moral lesson for the photographers here: You “professional photographers” want to lecture kids like the richter scales’ about how it was wrong and immoral for them _not_ to contact each photographer whose image was used, disclose the full nature of their project, and get explicit each photographer’s explicit permission. Fine, lecture, but it’s worth stopping and asking “how much money would I actually make, if I informed each subject of the full terms and conditions associated with my taking their photo, rather than take the ’shoot first, inform later’ approach…”.

I like the friendship bracelets - reminds me of http://bizworld.org/ and the program they run to “teach the basics of business, entrepreneurship, and money management and promote teamwork and leadership in the classroom.” Great video. +1

Way to flippantly dismiss copyright concerns, Mike! I wouldn’t expect much more from you, I guess. Maybe I’ll create a “parody” blog consisting of all of the posts you’ve ever written… What? It’s just humor!

@Trae Dorn
If the copyright is not registered, you can seek actual damages. When it’s registered, you can also seek statutory damages–up to $150,000 per willful infringement.

@Sean McBride

BTW, when will you start your parody blog?
My concern is that your planned blog will be amusing or not.

She really is the Copyright Nazi, huh? (soup not german)

Interesting interview and goes to show she’s insulating herself and hearing what she wants to hear…

http://www.news.com/8301-13580_3-9835714-39.html

She’s gotten support from the tech community?

Can’t wait to hear how much that invoice is for!

got to admit, though, the richter scales screwed things up big time when they didn’t credit her and the other artists in their work. they could have stopped everything by being nicer, and treating artists with more respect. basically they were lazy and ended up trying to use “fair use” as a defense. very tacky. same time, lane hartwell seems a bit over the top.

@80 comment,

i have a strong feeling that the comment is written by the legal attorney friend of hers

Shorter Scoble: “Web 2.0: screw you, I’m getting paid.”

I never thought anything would make me nostalgic for SF during the the final absurdities of the first boom, but TechCrunch is doing its best.

@98 Jasonmann:

No, I wrote that myself.

I’m quite stunned that Scoble, who claims to have been a pro photographer, doesn’t understand how licensing works, or the difference between commercial and editorial photography. Perhaps this is the reason he is no longer doing it.

I find it incredibly interesting that people who have apparently no understanding of how any of this works in society or law are so quick to offer their entirely worthless opinions on the subject based on how they think things should be.

The reality is that everything found on the web is not free for anyone to do with as they please. Hard pressed, I’m sure you could get any reasonable adult living in a capitalist society to eventually admit to this even if only using absurd and unlikely examples to illustrate the point. The band is obviously at least a little bit legally savvy since they were the first to bring an attorney into the discussion.

So here we go: a band takes Lane’s work and uses it without her permission. They don’t give her any credit at all meaning that the supposed exposure is worthless and she is supposed to willfully accept this as a good thing somehow? How is it you people are all attacking the person who didn’t do anything wrong here?

Clearly this isn’t about the money. Lane has already said that the money after attorney costs will go to a charitable cause. (as it apparently would have if the band had originally agreed to terms) Instead, this is about protecting her rights to her own work - something that I would not expect anyone who has never worked for themselves to produce a livelyhood should ever understand (probably most of the people posting here) but something that the Richter Scales should damn well be familiar with.

The point isn’t that they stole her work and didn’t make millions off it (though the free publicity from the youtube video and the fallout since obviously has helped them in a way that is likely to be financial) The point is that they stole her work, period. If they do this and publicly use it and she doesn’t do anything, she is condoning people stealing her work and doing whatever they want with it. Is that what everyone here seems to think she should be doing?

As a former professional photographer and Army photojournalist, and as a current IP lawyer, let me say conclusively that Lane Hartwell is in the wrong.

What a waste of humanity.

Great video! I almost forgot it.

I’m a professional photographer. It’s my opinion that Lane is legally in the right, but that the Richter Scales’ mistake was understandable. I posted a more in depth analysis of the situation on my blog.