Wednesday, January 2, 2008

Photography Copyrights on the Internet - The Richter Scales vs Lane Hartwell

Recently, the Richter Scales posted a video that included a copyrighted image without permission. Lane Hartwell, the photographer who created that image, filed a Cease and Desist notice under the DMCA (a law I take issue with in many respects, but one that clarifies the take-down notice procedures when you have a Copyright infringement claim on the internet -- a necessary evil).

Since then, many people have chimed in with many differing opinions. As a content creator myself (photographer and musician), I understand the value and necessity of copyright, and I also understand the value of free publicity. As usual, when there's an argument, both parties are right, and both parties are wrong, but in terms of the law, I'm going to have to say that it's on the side of Lane Hartwell, whether you agree with Lane's reaction or not.

The Richter Scales were under the impression that their use of the image qualified as fair use. A poster on Lane's blog sums up the misunderstanding eloquently. My comments are in square brackets.

Legal considerations for the fair use defense:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

no revenue made whatsoever from this youtube embedding… check [Actually, the YouTube posting acts much like advertising, driving substantial traffic to the band's website, where they advertise their concerts and CD's for sale. Whether the band was able to capitalize on that commercial potential successfully is not the legal issue.]

2. the nature of the copyrighted work;

apparently it’s a bunch of people at a party who didn’t sign model releases and the photo alone doesn’t have much saleable value… check [Not so -- the photo was commissioned by Wired magazine, and under a 90 day exclusive rights contract with Wired at the time of use. Whether or not viewers see a commercial value in a photograph has no bearing on whether or not the photographer can sell the photograph. Model releases are not required for editorial use (ie, a story in a magazine), nor would it be practical to collect model releases from everybody photographed at a party.]

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

One second of viewing at postage-stamp size with remarkable artifacting. Can’t be copied, can barely be freeze-framed… check [Regardless of how it appears in the video, the entire photograph was used and is clearly recognizable. I'm afraid the point here is entirely missed.]

4. and the effect of the use upon the potential market for or value of the copyrighted work.

If it had ANY effecton the potential market… it probably increased it a hundred-fold. check and mate [Actually, the free appropriation of photographs without compensation de-values not only license for the photograph in question, but also the entire photography industry. If people assume that it's okay to repurpose content without obtaining permission from the Copyright holder, it makes it very difficult for content creators to earn a living at their craft. If the photo was really worthless -- would it ever have been used at all?]

I am a full time photographer who frequently shoots at nightlife events. Let me break it down for you from the economic perspective of a photographer:

Cost of doing business, including equipment, insurance (equipment and liability), industry dues, software and website subscriptions, marketing, studio time, cost of living, etc... work out to be about $4,000 - $15,000/month, depending on the extent of facilities and equipment needed for the photographic specialty. For me, that's close to $6,000/month. Just to break even, a photographer needs to make several hundred dollars per photo shoot. If you've ever priced wedding photography, that's why they charge $2000+ just to come shoot a wedding, in addition to prints, albums, etc... Weddings involve even more work.

From a photographer's perspective, it's often difficult to convince clients that they need to spend $600 - $1000+ just to go shoot an event. "After all," the client is thinking, "hundreds of people are going to be there with their point and shoot cameras -- there will be PLENTY of photographic coverage as it is!"

One of the most difficult jobs I've faced as a photographer is convincing clients that my photography isn't just worth paying for -- it's worth paying a premium for. Some clients understand the value of good photography -- sadly, many don't. Because it's easier to sell an outstanding photo that's already made than it is to convince clients that you'll make outstanding photos, pricing photography becomes a delicate balancing act between making money on the photo shoot itself, and making money by selling the stock photos from events.

Naturally, the photographer is motivated by necessity to sell licenses of the images captured at a shoot, and that means that all full-time photographers have a vested interest in protecting their Copyright. That's why Lane reacted the way she did to the misapropriation of her photograph -- her ability to feed herself and continue doing what she loves for a living depends upon it.

As a musician and a blogger, I also understand The Richter Scales' position. They are not professional musicians, and what little money they earn from CD sales basically goes to pay the costs of being in a band. The video is largely a joke, and not a financially motivated publicity stunt. Frankly, even if they knew that they could have purchased a license for the image (they couldn't -- it was under exclusive contract), I seriously doubt they would have been willing to pony up for a license.

That said, most of the time, if you're in that situation and you ask for permission, there's a good chance that the photographer will say yes -- as long as credit is given where credit is due. The Richter Scales have learned at least a little from their mistakes. The edited version of the video now features a credit list.

The Richter Scales were uninformed about the complexities and necessities of Copyright on the internet. Perhaps Lane will start to follow the common practice (one that I've recently started) of placing a credit watermark on all images uploaded to internet photo sharing sites like Flickr...

What would I do were I in Lane's place? I'm not sure. I empathize with her frustration over the mis-use of her photographs. I have a similar problem (which is why I started watermarking my photos). On the other hand, I watched and enjoyed the video before this controversy broke out -- and if I had seen that they used one of my photos, I probably would have been delighted, and asked for a credit link in the description of the YouTube posting. If the Richter Scales were a huge band on a major label, my reaction might have been more like Lane's, though.


Blogger Nalts said...

Thanks for this post. It gives the photographer's perspective some validity. What would you do if you were Hartwell?

January 9, 2008 5:14 AM  
Blogger Eric said...

I answered that question in the last paragraph:

[...if I had seen that they used one of my photos, I probably would have been delighted, and asked for a credit link in the description of the YouTube posting.]

January 12, 2008 4:43 PM  
Blogger Ramsey said...

Sorry Eric, but I have to call bullshit. No offense, but the stance that you take in this particular example is perched on a very fine line and by sharing your view on this matter you are also propagating an uninformed view that others can take the wrong way and continue to spread misinformation. I would not argue against your stance if you had maybe a few resources quoting actual copyright law or other parallel cases that exemplify the issue that we are discussing. Or maybe even some resources that those who read your blog can use in order to form their own view.

Without more context however, I feel that one can misunderstand the long reaching effects of such a stance. In the short term view, the right to have exclusive rights over something that you have created will put money in your pocket (not food on your plate as many argue from the "starving artist" stance). It is a feel good knee jerk reaction to want to defend somebody who created content that was misappropriated.

What are the real consequences and the long term effects of such a view? This question has been asked by people before us and their discussion can be found here

There you will find statements from people who actually study law and have been through some of the same situations that you described in your article.

Another philosophical argument comes in the form of a quote from Robert Heinlein. The quote is an example that leans a bit more to the extreme side of the argument but I feel that it illustrates my view point well.

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest."

February 6, 2008 10:30 AM  
Blogger Eric said...

I see your point, Ramsey, but I think that your view is extreme and distorted, and is based more on your own personal views than on aiming for the maximum benefit to society. You're not arguing that this is fair use, you're arguing that Copyright law is invalid. From a legal perspective, you're absolutely wrong, forgetting the philosophical side of the argument.

As with most arguments, I think there are two sides. Both are right, and both are wrong, and I think it's our job as a collective to find the middle road that leads to a happier, more productive society. One where photographers can earn a living making photographs, musicians can earn a living making music, and filmmakers can earn a living making films. I think that society benefits enormously from our arts, and those arts must be encouraged to thrive, and whether you like it or not, I think that government does have a role to play in getting this mix right. I think right now it's leaning too much toward content creators (or more specifically their heirs or corporations), thanks in part to forces like Sunny Bono and Disney. I think that the arguments presented by the speakers you linked to are very good, and very informative, and I wonder if you listened openly to the things they had to say. Their views seem very much in line with my own.

I believe that the first speaker at the page you linked makes a very eloquent point:

"Your film and your art is valuable to the filmmakers, and especially musicians as well. Art is not funded very well in this country, and we certainly have stayed alive as filmmakers and been able to continue making films by selling and owning our films, and as different mediums come out - such as video or dvds, or cable television by being able to sell them in those markets. [...] All I can say is there has to be a kind of fairness about it. Artists have to make a living as well. Art needs to be somewhat protected." - Chris Hegedus

My view is that the original length of copyright (14 years) is a good term. I hate the idea of orphaned works and the loss of the public domain as much as anybody, and in my political work, I have strongly promoted the ideas of Lawrence Lessig. The idea of big corporations or estate heirs feeling entitled to hold our culture hostage, quite frankly, makes me angry.

I find this quote from composer Anthony Kelley to be extremely relevant to this particular discussion.

"I think intention or purpose is a big deal to the artist. If it's intended for mass commercial purpose, it would really be to someone's advantage to get in contact with the artist if possible. If on the other hand, it is intended for education or for local demonstrative, or exploratory artistic purpose, I don't think artists get as rialed up about that." - Anthony Kelley

This is essentially why I said in the last paragraph that I would have been delighted if one of my photos were used in their video, because it didn't strike me as a particularly commercial use, but it did seem to be a humorous statement of some social value. However, if a huge, major label band used one of my photos in a video that got a lot of play on MTV, I would almost certainly be taking them to court. The difference? Intention. The Richter Scales probably weren't terribly financially motivated by their use, but the major label artist is looking to expand their musical careers and cash in on the commercial value of their MTV video, and that makes a big difference to me as an artist.

"The goal of Copyright is to encourage progress and also to encourage dissemination of work."

"Making new works is expensive! You need to get paid for it, to get paid for it, you may need a legal right, one of the rights is a copyright, which you can trade away. That gives you a power to make a deal. The deal pays (and this is why we care about it) for the work that you're going to do. You can say, "I'm going to get paid for this" so you can get someone to invest in it, or you can run it up on your credit card, and believe that one day you're going to get paid for it, and you can make your movie because of that right..." - James Boyle

February 6, 2008 6:18 PM  

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