Den of thieves

Recovered from the Wayback Machine.

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.


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 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.


Lane Hartwell’s post on this issue.

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