Mathew's comments - Latest Comments in Why Lane Hartwell is wrong

Re: Why Lane Hartwell is wrong

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Re: Why Lane Hartwell is wrong

Lefty — Fri, 18 Jan 2008 09:36:08 -0000

Fair Use is not a slam dunk, and particularly not in the case of photographs, music or video, which--unlike the text works which copyright law was originally intended to protect--can't be easily "edited" or "summarized": it's pretty much 100% or nothing. There's a possibility that the video maker could claim that his use was de minimus, since the photo appears for a very short period.

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.

Re: Why Lane Hartwell is wrong

D. Ross Cameron — Tue, 25 Dec 2007 00:28:26 -0000

So, Mr. Arrington, you establish yourself in the brevity of a single post as being confused about the actual nature of "fair use," and a misogynist besides.

Your arrogance troubles me.

Re: Why Lane Hartwell is wrong

D. Ross Cameron — Tue, 25 Dec 2007 00:25:27 -0000

"Based on her post about why she took her photos off Flickr, I wouldn’t hire her."

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.

Re: Why Lane Hartwell is wrong

jeremiah — Sun, 23 Dec 2007 20:37:12 -0000

Actually Mathewi, you're wrong......kind of. Your point-by-point refutation is not relevant.....the poster was illuminated the litmus test of copyright infringement...which are all of the points taken as a whole. That you feel each one is somehow individually irrelevant is beside the point: they're taken as a whole when being considered by a court.

Here's a more nuanced explanation direct from the US Copyright office:

http://www.copyright.gov/fls/fl102.html

Re: Why Lane Hartwell is wrong

mathewi — Tue, 18 Dec 2007 17:37:02 -0000

I'm not sure why I'm even bothering, but you're completely wrong on all counts.

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.

Re: Why Lane Hartwell is wrong

dude — Tue, 18 Dec 2007 17:08:18 -0000

You are wrong:

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.

Re: Why Lane Hartwell is wrong

Delia — Tue, 18 Dec 2007 05:04:21 -0000

Hmmm… I don’t see how the Creative Commons (or any other such organization) could possibly give EXTRA rights to copyright owners that they do not already have by law. The whole idea behind CC is to *give away* SOME rights copyright owners legally *have* (while preserving some of them, such as attribution, which appears to be just basic respect). D.

Re: Why Lane Hartwell is wrong

Delia — Tue, 18 Dec 2007 04:58:34 -0000

Hi Ket!

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.

Re: Why Lane Hartwell is wrong

mathewi — Tue, 18 Dec 2007 04:58:02 -0000

Ket, the satire doesn't have to involve the photo specifically -- it's
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: Why Lane Hartwell is wrong

mathewi — Tue, 18 Dec 2007 04:57:02 -0000

It's not required by copyright law, but it may be by Creative Commons
licensing rules. The two aren't mutually inclusive.

Re: Why Lane Hartwell is wrong

Ket — Tue, 18 Dec 2007 04:53:58 -0000

I think Shelley is probably right that this does not fall under fair use. The satire was not of the photo; the photo was grabbed in service of a satire of something else.

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.

Re: Why Lane Hartwell is wrong

Delia — Tue, 18 Dec 2007 04:50:11 -0000

It seems to me that it IS legally required (unless the people running the CC License are completely ignorant of the law... and I seriously doubt that). I mean, they devised a way for copyright holders to give away some LEGAL rights so that the "creative commons" (aka. the society at large) would be better off. The right of attribution is NOT among those rights (just check out the link I gave).

Re: Why Lane Hartwell is wrong

mathewi — Tue, 18 Dec 2007 04:22:01 -0000

Delia, I'm not saying there's anything wrong with giving someone
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.

Re: Why Lane Hartwell is wrong

Delia — Tue, 18 Dec 2007 04:18:26 -0000

re: http://creativecommons.org/about/license/

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

Re: Why Lane Hartwell is wrong

Karoli — Tue, 18 Dec 2007 02:08:24 -0000

Let's revise that last sentence to be "singers" -- some musicians have to be very smart or else everything falls apart.

Re: Why Lane Hartwell is wrong

E. Fregoisi — Mon, 17 Dec 2007 02:58:34 -0000

oh boy. such pompous tut-tutting about how the terrible ms. hartwell has spoked all the fun. well, fact remains that content creators should have a right to how their work gets used. this wasn't an incident decades after she snapped that photo so the creative commons claim does not apply. your link to arrington is not instructive. he adds nothing to the narrative other than snark and a half-assed summation of a conversation he supposedly had with a copyright attorney. if the video's authors want to include hartwell's work, the should first contact her for prior permission - or set up a payment schedule.

this is all less complicated that some of you would suggest

Re: Why Lane Hartwell is wrong

Shelley — Mon, 17 Dec 2007 02:52:30 -0000

Typos, I can't type in these little boxes.

Should be:

"What Lane has done has _not_ adversely impacted on Richter Scales and they could have easily avoided all of this. "

Re: Why Lane Hartwell is wrong

Shelley — Mon, 17 Dec 2007 02:51:15 -0000

I agree on not putting photos on Flickr if you're a pro. It's not really the place.

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?

Re: Why Lane Hartwell is wrong

jeneane — Mon, 17 Dec 2007 01:44:08 -0000

I think that over the last several years, the transition from calling what we do (or are putting) online "writing" or "blogging" or "photography" or "music" to "Generating Content" has had a not-so-subtle effect on our notions of ownership and value.

Re: Why Lane Hartwell is wrong

jeneane — Mon, 17 Dec 2007 01:32:07 -0000

Mathew, First of all, I used those three words (women being only ONE of them) purposely. It's NOT just women. It's anyone exhibiting a dissenting opinion, or critical thought that the loudest voices tend to dismiss.

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.

Re: Why Lane Hartwell is wrong

johm — Mon, 17 Dec 2007 01:00:56 -0000

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Re: Why Lane Hartwell is wrong

jonathan peterson — Mon, 17 Dec 2007 00:29:30 -0000

Mike, how is Lane protecting her intellectual property any different from you killing techcrush?
http://tinyurl.com/yuxyol

Seems like you're both a sexist AND a hypocrite.

Re: Why Lane Hartwell is wrong

zota — Mon, 17 Dec 2007 00:00:56 -0000

The argument each right holder must be contacted and permission granted for every image used in a video has made documentary films increasingly time-consuming and expensive to make, in some cases forcing completed documentaries to be abandoned and blocked from release.

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.

Re: Why Lane Hartwell is wrong

leigh — Sun, 16 Dec 2007 23:29:52 -0000

Oh and just to be clear and this debate is a bit emotionally heated - I am not suggesting Lane Isn't talented - I am just suggesting arguments that these type of copy write violations are ruining people's livings in general, is not what I heard from people who work in the industry.