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.