Burningbird

Lane Hartwell has posted a statement addressing some of the misconceptions about the use of her photo in the Bubble 2.0 video. For instance, one misconception is that she's suing Richter Scales. She wrote:

It has been erroneously reported in various media outlets and blogs that I have either filed or am in the process of filing a lawsuit against The Richter Scales. This is simply not true. At no point has there been any talk of filing a lawsuit on my behalf. To make matters worse, I have yet to be contacted by even one of these media outlets or bloggers to verify the authenticity of my supposed lawsuit.

Lane is actually easy to communicate with via email, which leads one to wonder if people have gotten so used to twittering, they've forgotten there are other forms of communication.

Tara Hunt had two good posts on this: Tragedy of the Commons: Lane Hartwell vs. Richter Scales and Mobs with Pitchforks and Mis-information. Tara speaks as a person who was busted herself for using photos and art without permission. She writes:

Whether or not Lane invoking the DMCA is legal or not isn’t really what matters here and making it about ‘hurt feelings’ belittles what is really at stake here. What is at stake here is that the continuance of individual abuse of the privileges of the works put into the commons will lead to fewer of those works being put into the commons.

That is the point. Perhaps because we have a knee jerk reaction to the term, DMCA, we tar and feather any use. However, Lane trying to protect the integrity of her photography is not the same thing as Disney trying to preserve the Mouse in perpetuity. If we overreact about copyright abuses from corporations to the point where we deny the validity of copyright for individuals, then we're not good neighbors in a village sharing a commons–we're nothing more than the Horde looking to sack the village; reacting petulantly, even violently at being denied our goodies. The issue is less one of copyright than it is one of respect. Lane deserves the respect due a person in her craft.

Respect also plays in a sub-thread that ended up slowly emerging from the original discussion. In Mathew Ingram's post on this topic, as I wrote previously, Michael Arrington wrote in a comment to me that the only reason I was supporting Lane, was because she was a woman:

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.

I was flabbergasted. I never once thought about Lane's sex when forming my opinion. Any of you who have read me for years know that copyright has been an issue near and dear to my heart, and I'm actually a copyright supporter–not the Disney type of copyright, but copyright as it was originally intended.

Several people did respond to the statement, both in my comments, in a post that Jeneane Sessum wrote and also in Tara's posts. She didn't specifically mention this in her second post, but Tara did allude to this:

I’m really put off that there are so many people spreading, but also believing, bad rumors in this case. I’m sure the many men behind the Richter Scales don’t 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.

Why the maliciousness now? From uninformed bystanders?

We didn't introduce the topic of gender in this discussion, but now that it has been introduced one can't help wonder: given the rather astonishingly harsh criticism of Lane Hartwell is there a possibility that some of it goes beyond just our reaction to the DMCA term? Could this also have something to do with Lane Hartwell, being a woman, asserting her rights against a bunch of guys?

I don't believe this of Richter Scales, the originators of the video. They seem truly unhappy that they've caused this unfortunate consequence, and didn't attribute the photographers as they should. But when I read the following at a post Michael Arrington wrote, after leaving the comment directed at me at Ingram's, I have to question the emotional context of some of this protest.

The real issue here is that Hartwell’s feelings were hurt. She wanted attribution in the video, and the creators ignored her. Attribution and people’s feelings are not things copyright law considers; rather, it sets forth the rules under which copyrighted works may be or may not be used by others.

The real issue here is that Hartwell’s feelings were hurt. (Also see the the comments to this post describing Michael running into Lane at an event yesterday.)

Haven't we seen this before? When a woman reacts to an event, her reaction is reduced to one of 'feelings', rather than rights or laws, or even common decency? Lane Hartwell did not react as a woman whose feeling were hurt. She reacted like a professional photographer, frustrated with people stealing and using her photos without giving her credit or asking permission, who then contacted the transgressors. When the group who created the video responded that their use was fair use, rather than respect her wishes, or even contact her directly about the use, she then hired an attorney who specializes in IP law to work with her to resolve this issue. An attorney, I might add who represented, pro bono, ThinkSecret when sued by Apple looking for the names of ThinkSecret's sources. Perhaps we might want to give him the benefit of the doubt that a) he's not evil, b) he knows what he's doing, and c) Lane knows what she's doing.

Agree with Lane's move, don't agree–there is nothing wrong with having an opinion on this issue. However, when we start advocating violence, plotting how to destroy her career, or belittling Lane's actions because she is a woman than, frankly, we have more problems in the commons than whether we get to view a funny video, or not.

Michael Arrington considers me …one of the most unpleasant people he's ever known. Fine, great, perhaps I am. I, however, didn't bring up the 'gender card', but when it's played on me, I sure as hell am not going to fold and leave the game.

What do we want from this environment? Where only those who are popular are allowed to determine the ethics of our interactions? That webloggers can speak softly in weblogs, but nastily in comments, Twitter, and backchannels and all is well? Where women can be so easily and so frequently belittled with nary a raised eyebrow? Mobs can be whipped up and turned loose without a thought to the consequences?

That only the little people get called out for their actions?

Weblogging is ten years old today. Huzzah! Now, what do we want from this environment? Because what we're getting is something I don't value anymore.

update

Lane Hartwell has issued a more detailed statement:

A photo of Owen Thomas that I shot under contract for Wired News was used without my permission in a music video created by the Richter Scales. I own the copyright to the photo and, as I do in every instance where I find my work used without my permission, I contacted the band, told them my work was copyrighted and asked why they had used it without contacting me to license the work.

The band’s response was that upon receiving my complaint, they contacted an attorney who told them they had the right to use my work without gaining permission, paying a licensing fee or giving me credit. They said the video was a parody and thus the unauthorized use of my image was protected under something called “Fair Use”. Normally when I contact someone about my work, they apologize and remove it immediately. Because they didn’t, and mentioned talking to a lawyer, I felt it necessary to talk to a lawyer myself. Despite reports to the contrary, I have not sued the band. I spoke with a lawyer to clarify my standing on the issue of copyright.

I suggest you read the whole thing. Especially those of you saying Lane's feelings were hurt, she should never work again, and generally dwelling on her evilness.

There's also a thing in the commons called an 'apology'.

Susan Mernit has a quote from professional photographer, Lane Hartwell, about setting her Flickr stream to private because of image theft.

What spurred this on was the popular Web 2.0 Bubble video, which I also linked, and which didn't credit any of the people whose work it used. Hartwell wrote:

Matt Hempey, the creator of the video, saw fit to give Billy Joel credit for his song, and saw fit to give himself and his group, the Richter Scales credit but failed to contact me and ask my permission to license this photo, which is marked all rights reserved. I was not credited, and there also are no photo credits for any other images that appear in the video.

Today, Wired has an article on Lane Hartwell, where she states:

"I wasn't upset by the video itself," Hartwell said, but the brief flash of her photograph — without compensation or credit — still rankled. "I thought, 'Where does somebody just get the right to take this?'"

Hartwell had her lawyer issue a takedown notice to YouTube. Mathew Ingram believes that Ms. Hartwell, and her lawyer, are in the wrong when it comes to copyright:

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t 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’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period.

A question to the lawyers: does use of a work without giving credit violate copyright law? I would assume it would, though from this page not giving credit is considered plagiarism, but not necessarily a copyright violation.

ValleyWag had an earlier writing on this, and still includes a viable link to the video. In the post, Owen Thomas writes:

I'm not a lawyer, but I've heard plenty of lawyers say that fair use is a murky and difficult area of copyright law. The role of photo credits in copyright law is likewise not entirely clear to me. Giving credit where credit's due simply strikes me as the polite thing to do. And surely not that difficult.

I suspect that the members of Richter Scales were simply lazy. The photo Hartwell took of me is the first search result for me in Google Images. It's not particularly apt, either; I was working at Business 2.0 when she photographed me.

Thomas also goes on to quote YouTube's Terms of use, and one thing it restricts is the use of photos in slideshows without getting permission, first.

Regardless, not giving credit should be heavily discouraged, rather than applauded. The Richter Scales group did this video not for the common good, but as a way of generating attention and publicity. How, then, can they assume that the creators of the photos used in the work wouldn't also feel the same way about their work, contained within the video?

Is it a case, then, that I can go out and grab posts from Mathew Ingram and other writers, and use these to create weblog posts, without giving credit or linking the originals, call the total a 'parody', or better yet, 'art', and Mathew would not see any harm in such? After all, I meet his interpretation of fair use: I'm using published work, parts of the whole (the whole being the entire weblog), using in a post, which will eventually fall off the main page, and I can't see how this would hurt Mathew commercially. I mean, does he sell his posts–five for a dime?

Tom Stachowitz writes:

This woman is a professional photographer and if someone wants to use an image of hers - even if it’s for something completely noncommercial - she deserves to be respected. How can anyone reasonably assume that you can just go out and take whatever piece of creative content you like without paying for it or even making a note of where it comes from? Worse, how can people defend the practice?

To me, the payment wasn't as much of an issue as using the work without giving credit. I imagine that if the Richter Scales group had dropped Hartwell an email, told her about the project, and promised to give credit–and then gave it–Hartwell most likely would have given them permission. But they assumed and took and basked in the glory that they received for their work, without once giving a nod to the creators of the photos. They took, they did not pass on.

TechWag did mention that the heart of this problem could be not that her photos are online, but where they're located: Flickr. People have taken to using Flickr like fisherman take to lakes stocked with fish. Flickr has tried to limit this by putting up a DIV element covering the photo so it can't be right click copied. To copy the photos now, you have to deliberately look for the photo in the page and access it directly to bypass this barrier. This goes beyond "Oops, I thought it was OK to copy".

I get requests, about every week or two, typically from naturalists sites or organizations to use bird or insect photos. I've never said no, and have generally given the sites free run to use any of my photos, as long as they give me photo credit. Asking for photo credit does not inhibit their use of the pictures.

I've now posted a photo use policy in the menu, which means such sites don't specifically have to ask permission, first–if the use is not for profit. One thing that hasn't changed, though, is asking that I be given photo credit.

If we get to the point where we assume all photos online are ours for the taking, without giving credit, rather than advance the state of art, we may inhibit it, as more photographers choose either not to put their works online for viewing–or choose to put them behind privacy barriers. Worse, if we get to the point where it's "OK" to take pictures, or writing, or code, or anything of this nature without giving credit, we've become nothing more than a den of thieves.

update

In comments to Mathew Ingram's post, Michael Arrington writes:

Shelley, Lane's attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with "giving credit." It has to do with being forced to license work unless it falls under fair use, which this clearly does.

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.

One could also turn that around back to Mr. Arrington: since it was a 'woman' photographer who issued the takedown against a 'man' video creator, according to Mr. Arrington, Hempsey is automatically right while Hartman's automatically wrong.

Taking this one step further: I, a woman, disagree with Mathew, a man, while siding with another woman. And therefore, according to Arrington's logic, that makes me doubly wrong.

Second update

bub.blicio.us has a more detailed look at the issue, both as an amateur photographer and friend to Hartwell, as well as links to several sites with comments.

Third update

Excellent coverage of commentary at Wired including a comment from Terry Gross, the IP lawyer that Hartwell hired.

Fourth

Lane Hartwell's post on this issue.