Civility and Copyright

One of the latest hoohahs to occupy the mind of bloggers is about video We Didn’t Start the Bubble, the Richter Scales and Lane Hartwell. A fun video has been taken off YouTube under DMCA provisions as the band did not credit Lane (nor any of the other photographers) in the video for the work that was used. There’s a lot of stuff on it, but here’s a brief summary.

  1. The Richter Scales made a very funny video parodying the web bubble and all the stuff that goes on. They used a lot of images grabbed from the web. They did not credit any of the photographers, but only the people who actually worked in the video. As they say on their blog:

    We did make an effort to credit those people we actively worked with on the video, as well as Billy Joel, which we listed in the comments on YouTube and on our blog. But, given the large number of sources we used, the task of assigning credit for each source seemed impractical.

    They thought the task was too hard, they thought the use was OK under the US ‘Fair Use rule’ so did not do it.

  2. Lane Hartwell, whose photo of Owen Thomas was used in the video, contacted the band. The photo was published all rights reserved, they had not credited her and she wanted to sort it out. She apparently felt that her query was not treated seriously enough, although she did get a credit on the YT notes, and moved onto the next step
  3. Ms Hartwell filed a DMCA notice with YT and requested the video be taken down. YT complied, as they have to, and it’s up to the Richter Scales to prove they are not using the image illegally.
  4. The Richter Scales have acknowledged the need to credit the photographers.

    Some folks have left comments saying we should acknowledge all the people who created the images we used in the video. Good point. We will go through the video and cite every source, and wherever possible, we will credit the original photographer. Once the list is up, if you see a mistake in it, please let us know, and we’ll do our best to rectify it.

  5. Ms Hartwell is currently in discussions with the band and will release a statement soon

There’s a more reportery take on this story at Wired magazine. Those are the facts as I see them at the moment. But there is a LOT of opinion out there, with people coming down on both sides. So here’s my opinion to add to the mix:

  • I think both parties were right as they believed at the time. Fair Use and Parody is a complex piece of law with no true guidelines, each instance has to be interpreted at the time. As you do not want a lawyers involved every single time, the interpretation comes down to what the individuals involved believe and what they can negotiate. Lawyers have been consulted, or just adding opinions, in this case and they do not agree.
  • Once the group had been contacted, I believe they were wrong to ignore, or give the impression of ignoring, lane’s concerns. She then moved onto the logical next step, a take-down notice. Because the US has woolly laws of fair Use (although often giving far more rights to use than other countries) they have a process to simply get things sorted – even if it is often mis-used.
  • With a take-down in place, the band can protest and prove they are using the images legally. What appears to be happening is a lot more discussions between the band, ms Hartwell and maybe more photographers. The video could still be back
  • Putting media ont he web is not free licence for all to use. There are still rights and restrictions and if an image is labelled All Rights Reserved, or CC By Attribution, it tells you what you have to do to use the image. But putting stuff on the web, or on the radio, or on the TV, or in any media that can be copied, brings with it risks and as a content producer you have to be aware of those risks and what can happen. There’s no place for naivety because many, many people completely ignore the copyright issues or just don’t know what they are. Civility at times is lacking, as the web can spiral down into a free for all.

Which brings me, at last, into a point about civility on the web. Tempers got hot on this subject and on some blog posts the comments turned into a slanging match. Especially the one from Mathew Ingram, who believes Lane Hartwell is wrong. Read down the comments and you this series: (I’ve summarised):

  • Shelly Powers stating she is on Lane’s side and using the image was wrong
  • Mathew Ingram stating that he believes her legally wrong
  • Michael Arrington also believing that the use of the DMCA was incorrect in this place. Then accusing Shelly of only supporting Lane because she is a woman.
  • Mathew asking Michael not to use a gender card as it is not relevant to the discussion
  • Michael stating” actually, Mathew, I’ll do whatever the fuck I feel like, and you can decide to censor comments or not.” and accusing Shelley of being “a fascist around these issues.”

Now, the comments may not be from the people named, but the posters are consistent throughout the stream and I’m hoping Mathew has done a cursory look at IP addresses to do some verification. Given that Arrington is one of the most influential tech bloggers, who earlier this year came out with statement below regarding the Kathy Sierra situation I find it astounding that he can use the same tactics that he previously decried. In this case they are not anonymous but they are ad hominem and should be avoided.

A lot of people we interact with daily seem very normal. But put them behind a keyboard and allow them to make anonymous comments and some really evil stuff can result. There’s no clear line as to what’s acceptable and not acceptable. But if you find yourself making anonymous attack comments that may be going overboard, ask yourself if you really want to be causing people the kind of pain that Kathy is going through. And then just stop

Read the rest of the comments stream, take a look at Arrington’s influence and then make your own mind up about how much you value his opinions.

Update 1: Hartwell posts her statement:

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.


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.

Update 2: Arrington posts about the comments.

4 thoughts on “Civility and Copyright

  1. There are so many shades of grey to this issue and taking one side or the other serves little purpose.

    Here’s what bothers me about this issue of rights and the right to “take down” someone’s derivative work. Take a magazine, some glue and some art supplies and you use the source images to create a new work of art. It’s a collage. Do you need to request permission for re-purposing the images in a derivative work? I haven’t seen that aspect discussed in the debate.

    The video in question was a mash-up of web images to visually accompany what was effectively a clever music video. The financial gain of the creator was not large in my estimate… “The Richter Scales” are a ad hoc vocal group that all have day jobs to support their musical “habits”.

    Lane put the web on notice that her images are hers and she locked down her Flickr site but the image in question is easily obtained from a web “magazine” (and thus easily implemented in a web collage):
    NOTE: the images there are credited Lane Hartwell but NOT label with any statement of rights protections.

    Lane’s body of work and incoming production is not in the least impacted by the use of the image and I think she over-reacted by having the work censored and I hope she and the Richter Scales folks can reach an amicable resolution… if not, I hope they re-edit the video and delete or replace the image with any suitable Web 2.0 face.

    The image appears 1-2 seconds on a music video that’s 2:43 long.

    If it was embedded in a commercial work, I’d feel differently but it’s folk art. It’s a mash-up of culture. It’s actually, IMHO, a potential source of “positive” PR for the photographers involved. It’s a midnight creative act for a guy with a day job, a new house and a kid that blew up into the an internet controversy over IP rights.

    I like to see lawyers and art separated by a wall of common sense and fair treatment for people creating folk art. This applies to mashups of all sorts. Ideally, I like to see these new forms of social media given some protections against abuse of the legal system.

    Make art legal (again).

    When the art becomes commerce then the issues often need lawyers but when that happens the art suffers tremendously. You can’t sing “Happy Birthday” in commercial media without paying for the right. We should start a fund to pay people NOT to use that song… it’s a musicial “virus” like most good children’s tunes. Try NOT to hear it right now. and now. and now. How much would you pay to make it stop.

    “Do you know why the alphabet is in that order? it’s that stupid song.” – Steven Wright.

  2. The issue with laws like this is that they are completely open to interpretation and everyone has their own opinion and interpretation, In this case the parties involved and all the commenters each have their own view. Sometime they overlap, sometimes not. Hopefully they reach an agreement and we get the video back, because it is fun.

  3. Rachel, I’m writing to your audience and NOT to you personally in this comment:

    “we get the video back, because it is fun.”

    Actually, the video is still with us: just not on YouTube.

    I wonder if Valleywag would take it down if asked? Or would they fight on principle (they don’t seem to have many BUT they might fight to escalte the issues for community benefit).

    Check it out and don’t blink during the second labeled 1:19 when the “infringed image” appears. That’s 1 second out of 164 of infringed image.

    Anyone that has ever created a homemade video knows that the effort involved is pretty exhausting and there is no payback other than the feedback from it’s audience. But this video maker got some feedback that involved lawyers.

    It foreshadows a world where the Internet moves closer to real media and all that that entails… like the Writer’s Strike and legal wranglings over pennies that add up to millions.

    It’s just sad. Where IS the harm in that cute freely available video and the hundreds that might follow? The audience has lost something when the creative talent needs to secure permissions for all images… does this include Corporate logos? It leads to a form of censorship that we should all agree is far too restrictive and limits expression to to high a degree.

    There should be laws protecting these more advanced forms of free speech. The government restricts images of the “war” in Iraq as well and makes journalists sign agreement to that effect before they are allowed to work with the troops.

    There are issues in this that deserve better treatment by the community of bloggers and creative professionals… standards that could be discussed and lead to more open sharing of media and some fair use allowances for derivative works that are not typically sold but are simply shared.

    Share. What a lovely concept: “use jointly or in common”.

  4. No worry, I don’t take stuff like this personally – we’re debating an issue, not me. Here’s a few random bits of information.

    If Valleywag receive a DMCA, as an American company, they have to take it down and THEN argue their position. In cases like this lawyers and non-lawyers balance risk and that’s what the respective lawyers have done in this case, although their opinions differ

    Many of the images I use on here can be regarded as copyright – screenshots of art/websites but I never ask permission because my assessment of the risk is low as I’m guessing the owners want me to write about the stuff to spread the word. I either inform or ask permission, depending on licence, when I’m using Flickr images as they do not expect their images to be used to illustrate a web story. When people use my images I’m usually fine, I prefer if they inform me but I licence them for use so they can be shared. Lane did not. That’s her choice.

    When Stanford Law School used Disney clips to discuss Fair Use, they argued Fair Use ( and they used far more than has been used then a quick view in the video here. They had an interpretation of the law, I bet Disney had another but the risk assessment was such they did not pursue. When a clip of the Superbowl copyright statement was used to illustrate copyright, it got pulled via DMCA but a counter-statement was issued and it got re-loaded. (can’t remember the link)

    I throw these out to say there are laws out there that allow use. I strongly believe that current copyright law in the US is far too burdensome, (especially for music) and I’ve heard plenty of tales of movies that cannot be re-released, valuable documentaries etc as the effort of clearing all the rights again is far too onerous and expensive. I strongly believe there needs to be some way of managing orphan works.

    There also needs to be a lot more case law/clarity over fair use, over transformative works, over parody, over non-commercial use, so it is all a lot clearer over use of images, of music, of characters and information such as in fanfiction, without the use of lawyers all the time. I don’t think we need more laws yet. We need to clarify what is there.