Lane Hartwell Controversy Heats Up
Dec 18th, 2007 | By James Lewin | Category: Podcasting Law 
The Lane Hartwell copyright controversy has led to a great deal of debate over the role of copyright and fair use in Internet videos.
Hartwell is a professional photographer that publishes her images on Flickr, with all rights reserved. When she saw one of her photos being used without permission or credit in the video Here Comes Another Bubble, she contacted the video’s creator, Matt Hempey, about getting it removed or having it properly credited.
The video, a cover version of Billy Joel’s We Didn’t Start The Fire, is a promo for Hempey’s band, the Richter Scales. Their version has new lyrics about the boom of lame Web 2.0 sites. The video features a string of images, uncredited, that illustrates the growth of these sites.
When Hempey did not respond to Hartwell’s request, she contacted YouTube and asked for the video to be taken down.
Freetards vs Copyright Bullies?
The controversy pits two indie content producers against each other. Hartwell is a freelance photographer that just wants to protect the value of her work because it’s her livelihood. The Richter Scales is just a San Francisco men’s chorus that likes to have some fun.
“Copyright law isn’t really built for resolving disputes between individuals like Lane and TRS,” says LawGeek Jason Schultz. “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.”
Podcasting legal expert Colette Vogele, in the the Podcasting Legal Guide, points out that fair use isn’t cut and dry, and that subjective impressions can make a difference:
Some commentators refer to a “fifth fair use factor” which hinges on good faith — whether your conduct might be considered “morally offensive,” Judges and juries are human, and their decisions can be swayed by whether they think you are a “good or bad” actor.
Because the controversy pits two indie content producers against each other, and because copyright and fair use are often legal gray areas, the issue has polarized discussion among bloggers.
Here are a few of the more interesting takes on the controversy:
- Lane Hartwell says that “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. They could have easily apologized, removed the video from YouTube and re-edited without my image and reposted.”
- Tara Hunt: “I‚Äôm really put off that there are so many people spreading, but also believing, bad rumors in this case. I‚Äôm sure the many men behind the Richter Scales don‚Äôt want a mob sent out to harass a woman whose photograph they used. None of this was done in malice: the photograph used, the request for credit.”
- Derek Powazek: “As more attention is focused on social media, and people become more aware of the value of all that media, this kind of thing is going to come up a lot. It‚Äôs time that we develop some ethical practices for the creation of collaborative media. Simply asking for permission to use someone else‚Äôs work is a good place to start.”
- Matthew Ingram: “I think Ms. Hartwell needs to remember one thing: copyright law wasn‚Äôt designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner‚Äôs views do not trump everything, and never have.”
Lane Hartwell Image: Laughing Squid
Many photographers use Flash popups that allow online viewing of their work without the possibility of users downloading them. Ms. Hartwell posted her work on one of the most public possible places, flickr, a site whose main page says in giant bold type “SHARE YOUR PHOTOS.” Given that she has taken virtually no steps to safeguard her work beyond a copyright notice that is dubious, given the context in which her work appears, her umbrage seems wholly misplaced and comes off as hubris. It’s akin to putting money in the street and then being shocked — shocked! — when someone takes it. There are numerous outlets for photographers to have their work displayed without being appropriated, if that is a concern. Ms. Hartwell has chosen the most public, accessible, and duplicatable one on the planet, and she is shocked — shocked! — that people are appropriating her work.
Steve
Flickr encourages you to ‚ÄúSHARE YOUR PHOTOS‚Äù, not to “RIP OFF OTHER PEOPLES’ PHOTOS”.
Suggesting that she “has taken virtually no steps to safeguard her work” is a straw man argument.
The photos were marked as all rights reserved. She contacted the Richter Scales directly when she noticed the unauthorized use and asked them to either give her credit or remove the photo. They chose to bring in the lawyers so she had to do the same. Those are reasonable and professional measures to minimize unauthorized use of her photos.
From Hartwell’s public statements it doesn’t sound like she was shocked by the Richter’s use of her photos. Her public statements make it seem that policing unauthorized reuse of her photos is a mundane part of being a professional photographer.
I think that a good argument could be made for the RS’s use of the images being fair use. An even better case can be made, though, that anyone can and will take you to court for unauthorized use of copyrighted material, so it’s pretty stupid to rip people off when there’s so much clearly marked Creative Commons content to build upon.
As a photographer and a musician, I think the main thing here is that if you’re going to use someone else’s work to do a mashup, GIVE THEM CREDIT OR BE COOL ABOUT IT.
As in, if you use someone else’s work in your own creation, give them credit if they ask for it. Don’t be lame and petulant. They don’t want to take it down because they’re getting publicity for it. They don’t want to edit the video to add the credit because they’re lazy, I’d wager.
And all these arguments that she should have known better are bullshit. Photographers use Flickr to display their work to obtain future jobs, or just for personal edification. That makes it okay to steal? As if. When you’re done blaming the victim, let’s take another look at the original wrong, and then another look at their very ungentlemanly response when they got rightfully called on their actions. Hubris, indeed.
There is a very nuanced line between the two sides which is the place where the most progress can be made, sadly, it’s so far off the radar, and well, nuance doesn’t seem to be an in-demand characteristic these days.
I’ll say it again: If not having her work downloaded without permission is a concern and a priority, any number of options are available to her. I agree the band should have credited her. But issues of their culpability aside, I feel less sorry for burglary victims who don’t lock their doors.