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It’s nice to hear that photographer Lane Hartwell is working things out with the band Richter Scales, after filing a DMCA takedown notice and having their video removed from YouTube because a photo of hers appeared in the video for less than a second. I wrote about this on the weekend
... Continue reading »
1 year ago
1 year ago
the most relevant issue?
1 year ago
Your arguments are good, as is your lawyer friends. Of course, we know that Lane's lawyer disagrees. In a court of law, where this won't end up, of course, another issue that will most likely come up is how important was Lane's photo to the whole?
Could the satire have been created without it? Would it have been irreparably damaged if the photo was removed and replaced?
As for damaging Lane's financial state with the use of the photo, without understanding her contract with the employer who purchased the photo, we don't know for sure. If the video people had actually used the photo in place within the publication, then it would be more between the publication and the video folks.
But by using it directly, they could have put her into a difficult position with her customer.
I am not a lawyer, but one thing I know is that law is not black & white. For every argument you could provide, chances are Lane's lawyer could provide another, equally good or better. Then a lot of this will boil down to: how important is the photo to the whole? I think in this case, a judge hearing that the photo was grabbed randomly, and could be easily replaced would probably say, don't waste my time, change the picture.
It would be interesting to read Lane's lawyer's response, but I don't think he's a weblogger.
1 year ago
And if Lane Hartwell is right in using the DMCA to have that video taken down, which is what I think you are arguing (correct me if I'm wrong), then the same thing is true -- fair use might as well not exist. And I think we would all be worse off if that were the case.
1 year ago
Um, no. Fair use would still exist when the derivative work is a critique or commentary on the original copyrighted work. In this case, they are using the full copyrighted work in a context that does not have a specific commentary on the original work and therefore could easily use a substitute. Fair use is not a free-for-all... Just because you are doing a 'parody' doesn't mean you get to do whatever you want.
If you can provide a court case that allowed for fair use where the derivative work does not directly rely on the original, please let us know. Every case I've read was a DIRECT parody or commentary on the ORIGINAL WORK.
1 year ago
involving a biography of the Grateful Dead the court ruled that under
the "fair use" principle the authors were entitled to use copyrighted
posters of the band despite not having received permission to do so.
Part of the court's reasoning was that the photos were small, and just
a tiny part of the overall work.
http://www.copybites.com/2006/05/second_circuit...
Under the kind of fair use that you describe, in which only direct
parodies or satires of the original work would be covered, virtually
every photo or video mashup or montage would be either illegal or so
cumbersome as to be unreasonable.
1 year ago
1 year ago
1 year ago
I ask again (first time on this blog): Why did the Richter Scales half-ass their credits? Why was Billy Joel more worthy of song credit than Lane Hartwell for photo credit? If they didn't have to seek permission to re-use anything, why did they credit some things and not others? And: How hard was it to ask for permission up front? (In-line disclaimer: I have asked for, and received permission to re-use one of Shelley Powers' photos in the past.)
I'll hang up and take my answer off the air.
1 year ago
that would be like pulling out a .45 and shooting somebody (applicable in the US only) for taking that parking spot you want.
1 year ago
1 year ago
Just in case you missed it:
"Copyright law isn't really built for resolving disputes between individuals like Lane and TRS. It's built for resolving expensive and highly profit-driven disputes between large full-scale commercial entities like movie studios, book publishers, software companies, or search engines -- entities with long-standing investments in the copyright system and in-house legal counsel to negotiate issues like licensing.
Ethics, on the other hand, might just be the right hammer for this nail. Ethical behavior is behavior that leads to the "greater good." It goes beyond the mere moral choices of right or wrong and deals with the broader question of the correct choice for society as a whole. If we, as an online society, want people like Lane to succeed in their work, to be successful and profitable photographers, we need to take care to promote them in a way that feels respectful and supportive. We need to make sure they succeed so that they will continue to provide us with amazing photos and make them available online."
and
"...the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator -- in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart."
So, even though you played it down, I believe Jason was more in the Shelley and Tara camp than anything.
Stop! Stop! We're both right! The DMCA sux, but TRS should have given attribution and not been community leaches. Unfortunately, we currently don't have much in place to promote these ethics. Perhaps we should be talking about this approach instead of splitting hairs. Until then, the only hammer Lane has is the DMCA.
1 year ago
Okay, maybe condensing his argument to "asking permission is nice" was
a little extreme, but I think the point is the same. It's not legally
required for a reason -- because it's not necessary. That's an
important legal principle and I don't think we should overlook it.
Would it be nice if everyone asked permission? Of course it would. The
fact is that in many cases it's impractical -- another reason why it's
not legally required. It would be nice if Lane had chosen another
route besides a DMCA takedown notice too. Just because a hammer
exists doesn't mean you should always use it.
Why couldn't she have used moral suasion -- in other words, persuasive
argument -- to make her point? Blog about it, get others to link to
it, shame the perpetrators in public. Isn't that better than a notice
and takedown?
1 year ago
According to the latest statement by Lane, the Richter fellas went to the law first. Rather than reply to her initial contact, ask what she wanted, offer to swap out the photo, or 18 other things they could have done, they called their lawyer, who said no, you're cool don't worry, and ignored her. Then the TOLD her they had a lawyer involved.
That's where the "wrong" part of the equation resides. The DMCA thing is a result of their lawyer's action, without which, part 2 of our little saga would not have been necessary.
Am I making any sense? I'm beginning to wonder if I'm speaking English. And if maybe that's the problem.
1 year ago
reach some accommodation at the time -- and maybe they did trigger the
DMCA takedown notice by saying their lawyer told them it was OK. But
the fact remains that by any reasonable interpretation of "fair use,"
a photo such as Lane's that exists for less than a second qualifies --
and should qualify. Therefore, their lawyer was right. The fact that
they felt they had to seek legal advice for such a thing is part of
the problem.
1 year ago
w00t! We agree!
1 year ago
I'm not sure which word you don't understand: "fact", "reasonable" or "interpretation". The only FACT is that you, Arrington and LawGeek have weighed in on one side of a complicated legal question, and that other people have weighed in on the other side. (e.g. one of LawGeek's anon commenters raised some very serious objections to the cited cases.)
You may sincerely believe that your critics are "unreasonable" -- but that's all too often just an excuse for dismissing them, as you've done here. Guess what? Many thoughtful people who have real experience with copyright have come down on the other side of the "fair use" question. Or, at the very least, acknowledge that this case is well into the gray area.
1 year ago
-- and I've allowed others to do the same.
1 year ago
Is that because you don't have two Ts in your name?
1 year ago
1 year ago
I would have credited Billy Joel for the song because I'd want people (who don't know billy joel) to know that I didn't come up with it and that the music was specifically a parody of that song. The song is a key part of the work of art, in fact, 50% of the mashup is billy joel.
It is obvious that the video creator isn't the original photographer of ANY of the photos used. It's beyond obvious that it was a killer mashup, a new work of art made from many, many other works of art. Lane Hartwell's actions are purely to get her name out there. Her livelyhood depends on her being able to contract work. By creating a "scandal", she instantly had press in thousands of blogs. Trying to tell me her livelyhood is hurt by a 1 second flash of her photo in a mashup that doesn't credit her is absurd.
As a photographer, I'm disgusted by Lane Hartwell's petty use of the DMCA.
As someone who makes mashups, I can't wait for the next killer mashup. I just hope new people that might have started making something won't get scared off when reading stories like this that are by far the minority.
1 year ago
This was more like the last straw. Hartwell said her work is quite frequently used without permission and without credit. A little story: I remember a relative coming with me to Yellowstone National Park (I may have the park wrong) on a trip. It was specifically forbidden with federal signs posted that removing the obsidian stones was against the law. Said relative, "Oh, it's just one stone. Who's going to miss it? There are so many." I was aghast. There in a nutshell is the whole slew of societal problems. No one thinks their "little" individual action doesn't matter.
Me, I'll just take one itty bitty stone, yet if everyone thinks the same thing....voila! surprise surprise there are no more obsidian rocks just lying around in the wild in a couple of years.
You can argue that photos are a renewable resource, unlike gemstones, but the fact is in this case I don't see why one artist can't respect another artists' wishes on how their own work gets used. I think this would be common courtesy.
And why exclude the original artists from being part of the conversation? (She stumbled upon the video.) I thought the Web was all about linking, and adding context, layers to dig and explore in URLs, URIs, permalinks? Why cut that prematurely short?
I see videos all the time where I'm really interested to know who is the musician? Where did that artwork come from? But more often that's left out altogether. And sadly, one less artist gets discovered, and one less artist that gets connected in this web we're weaving...the Internet builds through citations, recommendations via links.
1 year ago
photographer and mashup fan who has a different opinion than Ms.
Hartwell.
1 year ago
I hope this incident get more attentions, and get talked about even more widely so people can get more educated about it. "Fair Use", ironically, benefits the original works in many ways. Great majority of the artists want their works to reach as many people as possible, so if their art works are critiqued, reported, and propagated more, the art works get seen more and potentially gain more buyers. I totally understand this "possessive" sentiment of artists toward their works and want more control, and in Ms. Harwell's case, she was simply saying, "Look, you guys cannot use my stuff. That picture is mine. I raised my camera and took that picture, which is hard work. And I don't care what the law says, because, again, I took the picture, so I own it."
Ms. Hartwell now says she wants to settle this in a civilized way and won't sue Richter Scales. Bummer, I was hoping to have this issue go further into the legal arena -- unfortunate as it is, but lawsuits do help to clarify things. Now, I kind of wish Richter Scales would sue Ms. Hartwell. For what? You ask. For violating their free speech rights, at the minimum.