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However, it seems like she is punishing the creators of this video for the transgressions of others. Had the use of her photo been a single isolated incident, I think she'd have let it pass. From what I've read it seems as though it's happened enough in the past that this teeny tiny transgression finally broke the camel's back and her reaction was way out of proportion.
What bothers me about this whole thing is that the copyright laws are again being used as a hammer to effectively shut down creativity. Had that been my photo in that video, I'd have loved it, bragged about it, showed it off to everyone. But that's me, and I'm only rarely paid for my photos (usually the quirky ones of the pug). It seems as though there should be some way to allow for some leeway in the form of a clear set of guidelines that can actually be applied without six gazillion lawyers getting involved. The problem with fair use is that it is such a murky and difficult standard to apply, and the courts have looked at it with such a rigid interpretation, that one always has to err on the side of caution.
Selfishly, I wish she'd withdraw her objections to that video and let them put it back up. I don't see Billy Joel out there calling "copyright violation", and that is probably the murkier question about content re-use.
As Owen Thomas has said, there were many other photos of him online the site could have used -- they just grabbed the first one that shows up in a Google search. Used another photo, and rebuilt the video. After first going through the stack, getting the other photo creators and putting up a page with credit at their site. At a minimum.
This parody was not created for the common good. It was to generate publicity and attention for the group. I'm not going to cut them slack because they made me laugh.
What we should be addressing instead, is perhaps our own opinion of the act, not the law. In my opinion, no matter how hard it was to find all of the photos, the creators of the video should have asked permission of the photographers. Then, they should have given credit, in a web page somewhere if nothing else. Barring that, they lost a lot of my sympathy by not even making the attempt, and then when they were contacted, not being very sympathetic to the photographer.
law to say whether it was a violation or not -- that's why I wrote the
post. I will agree that adding credit and/or asking permission is a
polite approach to take, and should be encouraged.
Really? On this issue, it sounds even the lawyers don't agree. It must be comforting to have the strength of your convictions. So...I disagree and feel that the use of the photo was not fair use.
The real issue for me is not whether something is legal - legilty rarely has to do with whether or not something is fair. And that truly depends (as the discussion highlights) on one's perspective.
For me personally? I'm a total fence sitter on this one. I use people's images all the time without their permission. Not because I'm a bad person, but just bc the photo works to demonstrate a point I'm making on my blog and I don't think too much about it. However, if someone emailed me and asked me to take it down? I would most certainly do so.
This sounds like a case of the arrogant video maker vs. a bruised ego'd photographer - kind of a wrong wrong if you ask me....
Or is it that creators of art aren't allowed such?
If the bubble video was selling a product I get the 'fairness' issue. In this case, I still think she over reacted in a moment of pissed offness.
On a related note, I have most recently talked to two photo journalists (one of whom is a VERY sr. photographer affiliated with the associated press) and asked if the amateur photo market and/or digital copy write was impacting their living.
They said it's the opposite. That what's been happening is that all the amateur photography in the market means that a lot of pretenders have been put out of business and that those that are great at what they do have risen to the top and are making more money than ever. And by the way, neither of the photographers I spoke to, put their professional images up on Flikr.
I don't think anyone is talking about ruin. I think what we're talking about is standing up for what we believe if right, especially in regards to our creations.
What Lane has done has adversely impacted on Richter Scales and they could have easily avoided all of this.
Amie Gillingham made some excellent points in this thread. And though I dislike sending buzz to the weblog, her points are worth a look.
One point she made was, if the Richter Scales group was a neo-Nazi organization who used the photo to create an anti-Semetic piece, how would people feel then about her reaction, and the people's use of the photo without permission? How much of this is based on the fact that the use is 'popular'?
A very interesting point I thought.
As for the pros/amateurs thing, I'm not sure what that has to do with this issue?
Should be:
"What Lane has done has _not_ adversely impacted on Richter Scales and they could have easily avoided all of this. "
Shelley, i would like to know your opinion on this. Lets leave law aside for a moment.
Lets assume that the guy in the photograph says that he would actually like 'his' pic to be in the video.
What would you say about that?
One would assume, then, that, unless he hired the photographer to take the picture, he would provide another to be used if he wanted his visage in the video. He might have even provided one to use if the video creators had just contacted him, first.
The 'contact first', seems to me, would have been the smart thing to do.
Alas, musicians don't have to be smart, only in key.
assume he has not hired the photographer. he just posed for it.
do you think owen thomas should be allowed to use that photograph without giving 'credit' or taking 'permission' if he is making a similar video himself?
I'm having a hard time figuring out where your comments are going. Are you trying to imply that Hartwell doesn't own the image because it's of Thomas? Or that in certain circumstances, this action would be OK?
Perhaps we should just stick with the existing circumstances and debate them.
Making video is such a huge pain in the butt. Taking a one-second clip out and re-rendering it while keeping the timing intact is a huge job and one I wouldn't want to undertake. This is why I absolutely loathe video -- I don't have the patience to make one change and have it take six hours to re-render. Not offering that as an excuse as much as an explanation for why they were unlikely to go back and re-cut it.
Awhile back I called out a fairly prominent blogger on their use of a friend's photo without credit on their blog. I received the same 'disregarding' reply where basically I was told it was fair use and I had no standing to complain. In this case, the photographer is someone who manipulates his images and really makes them look like works of art. They are unique and I can pick them out of a group as being his by the style alone. He deserved credit.
Rather than giving credit, they pulled the image down. I don't understand that decision either. It was a blog post, for crying out loud. How hard would it have been to edit and insert a link back to his images and his name? Yet they just yanked it.
Again, it seems like if we had some actual and realistic guidelines a lot of aggravation and bad will could be avoided by all parties.
This one doesn't make a lot of sense, Karoli. Every application I know of that creates videos from stills has a way of re-building the application with a click of a button. You can move, add, delete still images.
I don't know what they used...but exchanging one still picture for another doesn't strike me as being that difficult. And I have used video creation tools, and even dinked around with Flash a couple of times.
As for guidelines, we have those. We have copyright laws, we also have known rules about plagiarism. Barring that, we have our ethics.
The guidelines are clearly unclear. Look at this debate! Yes, all of this could have probably been avoided by giving credit or asking permission, but beyond that, there is a clear disagreement about whether use of the image was permitted under fair use. Mathew says it was; others say it wasn't, and the end result is lose-lose for everyone.
I'm unwilling to risk having to go to court and argue that my use of an image for less than a second was permitted under fair use. I'd just pull it off and move on.
Hypothetically, what if credit had been given for the image and the creators then received a bill for use of the image in their video? And let's say for the sake of argument that they made money via advertising or traffic to their site and the image owner then demanded a 10% cut of the income as compensation for use of the image?
On the other hand, not giving credit doesn't open that door.
Hypothetically again, what if they had asked permission to use it and received it, the video had gone wildly viral, made money, and the creator then came back and requested compensation in excess of standard rates?
Both situations would have ended up being litigated at a huge cost to everyone.
This is my argument for bright-line standards. It's too open to challenge, too open to interpretation.
And from the hypotheticals, you can see that using the ethical approach doesn't guarantee that all parties end up satisfied. Both of those hypotheticals have roots in real cases.
Sure, things could have been handled differently, but I think she made them worse. Lane, do it for the love first, and the money secondarily or be upset all the time. The choice is yours.
"Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work — a “some rights reserved” copyright."
If I understand your comment (correct me if I'm wrong), you're saying that we should just ignore the various versions of copyright that CC clearly defines and just assume that if it's on the internet, it's free for the taking.
Maybe you're the one who should stay away from that Creative Commons party.
I agree with Lane, and had no idea I was a woman, either. /smirk
I don't know Ms. Hartwell's art works; perhaps she only took pictures of flowers and sunsets, in which case my theory would be moot. Well, we would never know, because Ms. Hartwell had taken all her photos off the Internet, and we wish her well, living in her own island of one.
I'm not supporting her, but if she took the photos from a public area like the street or sidewalk then she doesn't need permission.
I knew I was perfectly legal to film from the sidewalk, but did not argue with him because he was built like a pro wrestler and could take me out with one single shove.
My point was that Ms. Hartwell is granted a lot of elbow room to exercise her rights as a creative artist. As a photographer, Ms. Hartwell knows full well that it only takes someone in a bad mood to challenge her rights to take pictures, and yet sadly she was unable to be more tolerant to a fellow creative artist, and had to bring in a lawyer (her own private security, so to speak) and a big hammer called "DMCA".
DMCA is a serious deal. What she and her lawyer did is akin to making a citizen's arrest of someone who drives 56 miles per hour in a 55-mile zone.
I feel sorry for Ms. Hartwell. She clearly did not understand the power of DMCA (she sure does now), and had the bad luck of consulting an attorney who should have advised her against issuing DMCA, which is the second most hated acronym in the online world, behind RIAA.
@Shelley: it's not "the lawyer", it's "Ms. Hartwell's lawyer." He or she has a duty to advocate for Ms. Hartwell's position that the use of the image violates copyright. That doesn't mean the position is correct. It isn't correct.
As for Lane and her IP Lawyer not understanding the Fair Use provisions is another story .
These days if you put something on the internet or publicly in any form expect it to be ripped ,sliced and diced within hours of it being released with or without your authorization .
My advice to lane would be Watermark all your photo's before you release them publicly and a private Flickr account wont help you .
As for Lane and her IP Lawyer not understanding the Fair Use provisions is another story ."
I have to ask: what makes you think I don't know Arrington, and leaving that aside, that he's more proficient in IP law than a practicing lawyer who specializes in IP?
"These days if you put something on the internet or publicly in any form expect it to be ripped ,sliced and diced within hours of it being released with or without your authorization"
I think this attitude will eventually harm more than help. If we have people hesitate to put their work online because it will be sliced, diced, and used any which way, we may end up losing the ability to see works of art, photos, even writing.
The internet has not done away with courtesy and respect, has it? Or has this all become nothing more than a den of thieves?
I think this attitude will eventually harm more than help. If we have people hesitate to put their work online because it will be sliced, diced, and used any which way, we may end up losing the ability to see works of art, photos, even writing.""
This is why I suggested that Lane Hartwell watermarks every photot she publishes on the internet then she creates her own attribution system .
Next, when the "negative" "women" "whiners" are brave enough to call the passive aggressive power elite on their B.S., they're labeled as mean for launching ad hominem attacks.
Those who do the invalidating score another win. The minions kiss their asses. And the beat goes on.
with women. That was totally off topic, and I think everyone sees it
as such.
You seem to be trying to conflate any disagreement with anyone's
position here, regardless of their sex, with some kind of overt or
covert sexist impulse -- as though only women have ever been
passive-aggressively disagreed with or had their points invalidated.
I can tell you from personal experience that isn't the case, and I
think you're distorting the point here by trying to make it so. Let's
not bring the whole universe of man vs. woman since the dawn of the
Internet into the discussion, please.
Secondly, my opinion on Mike's tongue lashing, which is what I shared here, is informed by reading more than one blog on this situation, six years in this environment, and excuse me, but it IS a valid point. Go read the techcrunch comments and then come back here and tell me we don't have a problem, Houston.
I'm responding as I see fit to the others asking "What Gives?!" Please don't lecture me for answering them honestly.
Using portions of the original copyrighted work to parody the _original_ work is covered under law (clips of the video from "We didn't start the fire" for instance). Using someone else's unrelated work in a parody is not covered.
I'm personally saddened to see such a fun work pulled, but if the Richter Scales refuse to credit or at least try to work with the sources of their material they deserve a swift end to their 15minutes of fame.
the term "satire," but that's all I'm guilty of. Using parody as part
of the fair use defence does require that the work be a parody of the
original copyrighted content -- but works of satire, in which
copyrighted content is used to make fun of something else, is also
covered in many cases by the fair use defence.
People seem to think that all one has to do in a copyright dispute is shout "Fair Use For the Win!!11!!", but it doesn't work that way. You can assert Fair Use, but unless a judge agrees, it's just an assertion.
Not that I'd approach Lane's dilemma the same way - I encourage people to share my work freely far and wide, but I ask that they also circulate my name and link along with the work too. DJ's remix - and still give credit where credits due.
Making a living as an artist in modern times isn't exactly a piece of cake. And it's not like you make up for it in social standing either. The art makes it all worthwhile. And these days, the relationships around that art make it all worthwhile.
Let's consider each piece of "art" to be a "social object" that sparks, and encourages conversation and exchange. Stripped of its creatorship, the viewer cannot hope to have a conversation with the creator, because we won't even know whom that would be.
I believe part of the beauty of Web 2.0 is that these kind of exchanges are possible between creator and viewer in a way that's never been done before. For instance, just the other day an author emailed me because he saw my attribution to his book. He would have been excluded entirely from that exchange with me, and with my audience, if I had "neglected" to mention his name altogether. Now he wouldn't be the wiser if I hadn't credited, but I wanted him to know that I was influenced by, informed by, and thus reused his work in my own.
It was clear from her own words that Lane was frustrated seeing her work widely distributed with no attribution ("credit"). Not only was she excluded around the conversation around the social object (she only stumbled upon it, it was innate to the finished video), she can't even reap the benefits of PR and word-of-mouth. This is akin to copy and pasting entire paragraphs, and even complete posts, from TechCrunch without any link, without a mention of author or mention of "TechCrunch" as the originator.
Even if that's legal, it's lame.
If I ran the world, I'd abolish copyright altogether. Creative Commons would be default. But even a CC license acknowledges and continues to include an artist in the derivative works.
The industry - whether you want to believe it or not - is really becoming put off by the things going on with the blogs. People aren't saying anything, they're just not going to them anymore.
Matt you make several excellent points, and her case here is so weak it is ridiculous. However I'm torn about the broader issue here - my guess is that her concerns about using her pic really were blown off by guys who have little concern for copyright, and this rampant cavalier attitude is one of the reasons it is hard to make good progress in this area. Solutions? Dunno, though I'm increasingly leaning to Jefferson's notion that idea "ownership" should not be tolerated and extending this broadly.
Another issue on just arbitrarily using a photo, especially a professional's photo in a work is contractual obligations. I'm don't consider myself a professional, but I have had photos published in a magazine. One stipulation at one time was that this was the first time--other than the photographer's own gallery--that the photo was 'published'.
For my writing, I've had to sign contracts that I will take said writing and re-publish it elsewhere--it is the exclusive domain of the publisher until such time as they release their copyright claims.
There is more to a professional photograph than the ownership of the photographer and the individual or group that uses it. If the photo was used in a publication, as the one in this video was, this could put the photographer into a difficult situation if the company that hired the photographer (or bought the photograph) suddenly sees their supposedly unique property being played in a video on computers across the world.
Not all contracts have these stipulations, and Lane Hartwell may not be under contractual obligations--but how would the people know, without asking first?
So there is more at stake than a second of viewing, and even issues of copyright law. There is also contractual law, laws about model release (ie the model may have signed a release for the photo to be used in such and such, but not in a video blowing bubbles) and putting the photographer into a difficult legal situation because of your own irresponsibility for not doing the decent thing _and checking about use first_.
This video was nothing more than entertainment and a way for this group to promote themselves. It will be forgotten with the next meme. It is not a significant cultural offering, nor unique research. It does not benefit the common good. Yet the actors behind the video are defended, almost universally. Yet they didn't ask first, and they didn't credit and when the photographer protested, she's been vilified.
I find this all very confusing. As if our ethics have somehow become twisted with too much social networking juice.
"For my writing, I've had to sign contracts that I will take said writing and re-publish it elsewhere--it is the exclusive domain of the publisher until such time as they release their copyright claims."
should be
"For my writing, I've had to sign contracts that I will _not_ take said writing and re-publish it elsewhere--it is the exclusive domain of the publisher until such time as they release their copyright claims."
There are no lives at stake here, we have all the time in the world to wait for the outcome of normal legal proceedings to decide who's right and who's wrong.
What's clearly wrong here is the chilling effect of the current copyright laws, and the abuse of that by rights holders such as miss Hartwell. Even if she is legally right, this kind of action is way more unethical and damaging then Richter Scales alleged copyright infringement.
takedown" rules have created. Take it down first and ask questions
later.
Or is it only Sony and Disney that can file copyright complaints?
What first amendment rights were violated?
Who was tortured?
What social good was curtailed by this action?
Perhaps you need to get a sense of perspective on this.
Using a photo in the way Richter Scales did is not "theft," despite what Lane Hartwell or anyone else says, and the courts don't treat it that way for a reason. And that means the rights of "property owners" like Lane to police their own content are restricted.
Video makers like Richter Scales -- or anyone else, for that matter -- don't have to justify their actions by proving some larger social good, thank God.
It's almost as if people asserting any form of ownership in their craft are seen as somehow stealing from the common good by doing so. I can't help thinking this will, eventually, discourage more than it will encourage people to put their craft online.
Richter Scales are not heroes in this story. They were sloppy at best, indifferent to the concerns of others at worst.
Tell me something: shouldn't Richter Scales have released this video without giving themselves credit, if they deemed this was OK for others work they included? What's good for others, is also good for themselves?
I liked the video. I liked several statements made in the video. Got a giggle. But it doesn't change the fact that they really should have asked first, and Lane is not 'evil' for getting pissed.
I think you and I will have to disagree on this one. I was wrong on the copyright/credit thing, but I still don't think this was fair use (or at, least not as clearly defined). And I don't think Lane deserves to 'not get hired' because she got pissed.
It sounds like the video will live again and they worked out an amicable resolution. Just another weekend memeblast.
better -- and hopefully they have worked out a compromise, as Lane
Hartwell suggests on her blog. But I think it's unfair to say that I
or anyone else here is suggesting people shouldn't be allowed to
assert ownership of their content.
The question is whether that "ownership" is absolute, and whether it
ought to extend absolutely in all directions, to any use of their work
in any form. I would argue that it isn't and it shouldn't, and that's
why we have copyright law and "fair use" principles in the first
place.
If using a photo for less than second -- one that has already been
published, and is on a public photo-sharing site -- doesn't qualify as
fair use, then what does? Should it only apply if Richter Scales were
making a video for their social-media course at school? Does it not
apply because they are a commercial entity of some kind? Or just
because they were thoughtless and didn't ask permission?
Already been published: Is this supposed to be an argument about not affecting the market for the work? If so, it's not a very strong argument.
On a public photo-sharing site: Does marking a photo on Flickr as 'All rights reserved' have no effect whatsoever?
Maybe Lane Hartwell didn't intend to join this attack on independent cultural producers and historians, but that's what happens when you bring in lawyers to correct cases of bad manners.
this is all less complicated that some of you would suggest
Mathew,
I don't get it... what's the big deal with giving someone *credit* for having produced something original, such as a photograph? Why *shouldn't* credit be given? Who's harmed by giving credit? Even the Creative Commons retains this right... and it does give away quite a few rights that could be legally retained, just not THIS one... it apparently regards it as not harmful and fundamental.
Delia
credit -- I think it's great, and if someone feels like doing that
they should go right ahead and do it. I'm just saying it's not
legally required, that's all. It's not a right in that sense.
licensing rules. The two aren't mutually inclusive.
The giving of credit is not relevant though in determining copyright infringement.
Some appellate copyright case law would be helpful. Any citations, guys? For an attorney (although obviously not an IP attorney), Michael Arrington seems surprisingly unable to use LexisNexis.
enough that the satire is about something that involves the subject of
the photo. For protection by the parody defense, it would have to be
a parody of the photo itself, but satire is also protected commentary
under most interpretations of fair use.
re:" The giving of credit is not relevant though in determining copyright infringement."
yet this seems to be what created the problem (I doubt we would have heard anything of this if attribution would have been given) D.
1) the “purpose and character” of the infringing material
The video is a promotion for The Richter Scales, a for-profit entity, not a nonprofit educational institution. Works of art incorporating copyrighted works in their entirety are NOT protected under fair use (see Rogers vs. Koons and Sonnabend Gallery - the court found that Koons use of "Puppies" was not covered by Fair Use)
2) the nature of the copied material
The nature of the copied material was a photograph which is protected under US Copyright law.
3) how much of the original work was used
The photograph was used in it's entirety - it was not cropped or altered in any way rom it's original form.
4) whether the infringement might affect the market for the work.
By infringing on the copyright of the photographer, the Richter Scales effectively reduced the market value of the photograph to $0.
Additionally, the video is a parody of the Web 2.0 phenomenon, but not of Hartwells' work and thus cannot be construed as a parody usage of said work.
1) Whether it's for profit or not is irrelevant, as several cases have
established.
2) Not relevant. Of course it's copyrighted -- that's the whole point
of fair use.
3) Also not relevant -- photos are almost always used in their entirety.
4) Not relevant -- the work was previously published.
Here's a more nuanced explanation direct from the US Copyright office:
http://www.copyright.gov/fls/fl102.html
Based on your commentary here, and your apparently flagrant disregard for copyright, I would hope that she wouldn't work for you if offered a job.
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Mathew is right, you are wrong. But since Lane is a woman, it really doesn't matter what she did as far as you are concerned. She's a woman, so she's right.
into the discussion because a) I don't think it's relevant, and b)
Shelley hasn't brought it up. I'd like to keep this focused on the
copyright issue.
Shelley is and always has been a fascist around these issues. If you're on her team (poliically) she'll support you to the death. Not on her team and she'll find a way to take you out at the knees. People ignore her rather than call her on it.
completely unrelated topic -- to take it up with her? I don't see why
my blog and anyone reading it has to be dragged into whatever past
issues you and Shelley have. I'm not going to censor your comment,
but I fail to see why you felt it necessary to bring sexism into it
when Shelley never even mentioned anything about that aspect of it.
civil discussion
There's no such thing as right and wrong any more. It's just who's team you're on. Then you defend your team no matter what they do.
what opinions you're allowed to have or not have. I'm asking you to
stick to the topic if you're commenting on a post of mine, that's all.
Hey Shelley, what gives? LOL.
Jesus Mike, it sounds like you have Winer's his hand up your ass moving your lips on the "shelley the voice for, by, and about women" thing. Not sure if you know that Shelley is also a professional photographer who has an obvious reason to be discussing the ramifications of photos being pulled and used in others' work without attribution.
I saw the video, which was beyond lame, before this whole dust-up.
Come on, man.
http://tinyurl.com/yuxyol
Seems like you're both a sexist AND a hypocrite.
Your arrogance troubles me.
If you're a lawyer familiar with copyright law, and copyright law doesn't doesn't require giving photo credit, I have to assume you're right on the legality. However, it doesn't make it ethically or morally right. Especially as Hartwell did contact the group, first, before bringing in a lawyer, and they blew her off.
As for the woman crack, what a crock. Does this mean that you're siding with Mathew because he's a guy, and I'm a woman who dares disagree with him?
I wrote on this, including your comment, Michael. But unlike some people, I actually linked to Mathew's post, and gave him credit for the writing. And you, for yours.
required -- is the ethical thing to do, and that's why I mentioned the
post where Richter Scales said they regretted not giving credit, and
were in fact in the process of giving credit when the video was
pulled.
As for their response when she approached them, I don't know if they
"blew her off," but I wouldn't blame them for arguing that it's fair
use and therefore doesn't require her permission.
included other blogs as well, I would probably thank you for it. In
any case, what you're suggesting happens all the time, and I do what I
always do -- absolutely nothing.
Using the photo and _not giving credit_ violates copyright law. There's not ifs ands or buts about that.
Only a slime would grab another person's work and not give them credit for it.
As for giving credit, the guys at Richter Scales have said that they regret not giving credit for the photos and video clips, and they were doing just that when the video was removed.
In any case, using a photo in the way they did is covered by fair use regardless of whether credit is given or not. It's a nice thing to do, but it isn't legally required for fair use.
His comment is that the video wasn't parodying Hartwell's work, and therefore claiming fair use under parody is invalid.
And I think plenty of other lawyers and intellectual property experts
would agree with me -- and I'm not just thinking of those who work for
the Electronic Frontier Foundation.
A work of parody doesn't have to be parodying the original work in
order to qualify under fair use. The court takes into account the
nature of the entire work, not just whether the copyrighted content is
the actual target of the satire.