Fair Use Vs. Free Speech in the Internet Age: The Lane Hartwell Problem

[youtube http://www.youtube.com/watch?v=I6IQ_FOCE6I&rel=1&border=1]

The furor surrounding the now infamous Bubble video (embedded above) is not over. To recap: the parody video was watched more than one million times on YouTube, then taken down because photographer Lane Hartwell objected to the unauthorized use of one of her photos in the video, then put up again with the offending photo replaced and a list of credits at the end for all the images used.

Now, more photographers whose images are included in the video are raising objections including Ramona Rosales, whose picture of TechCrunch’s Michael Arrington (taken originally for my alma mater magazine, Business 2.0, see above) is featured. Echoing Hartwell, Rosales tells professional photography blog PDNPulse: “I’m totally against the unauthorized use of my image. I was never asked permission nor have I received any compensation for it’s use; . . . I will be contacting the Richter Scales today to remove my image.”

What we have here is a major disconnect between the norms of the offline world and the emerging norms of the Internet. Both the law and industry standards are trailing what is a major transformation in how people use other people’s words, music, and images in the Web’s culture of participation. Putting your photos up on Flickr (which Lane Hartwell did) and then acting surprised when someone uses them is like leaving your car in downtown Newark with the keys inside and acting surprised when it is, um, appropriated. The law may (or may not) be on Hartwell’s side (see below), but that is not the point. The law is outdated.

In the old days, someone might have clipped Hartwell’s image from a magazine and put it into a collage, or filmed it and put it into a private video. Nobody wold have known or complained. It is when the private becomes public, when that video is shared with millions on the Internet, that the issue arises. Because all of a sudden it becomes a broadcast, and if there is an ad on any webpage associated with the work, it becomes commercial.

The rights of the copyright holder have always been balanced against the more fundamental right of free speech. And free speech in the Internet age, more so than ever before, goes way beyond words and text. The way people express themselves on the Web increasingly involves images, video, animations, and other rich media, often in mash-ups of pre-existing works. That is how people communicate today. Both copyright law and industry standards need to evolve to take that into consideration.

That means the way creative people like Lane Hartwell get compensated for use of their work must evolve as well. Simply transposing the standards of the pre-Web world won’t work. Charging hundreds or thousands of dollars for a single image makes sense in a world of scarcity, where that image is used once by a magazine, for instance. On the Web, charging a lot upfront is the wrong model.

Charging at all may even be the wrong model. The currency of the Web, after all, is the link. If the Bubble video had proper links (preferably within the video itself as each image pops up) instead of just a list of credits at the end, that might actually be more valuable to each photographer than working out some piddling licensing deal. Links drive traffic, which would help each photographer find more clients and even sell more images on their own sites if they so choose. That is not the way things work today, but everyone would be better off if it was. And that is the crux of the Lane Hartwell problem. It is not her problem, it is all of ours.

Before we get to that, let’s talk about the law as it stands today. There have been arguments on both sides about whether the use of these images in the video would fall under the fair use doctrine of copyright law. Ultimately, only a court can decide. My co-editor Michael, who has a law degree from Stanford but is by no means a copyright expert, argues that it most certainly is fair use. Hartwell (and her lawyer) argue that it is not, principally because the image was used in its entirety without permission and the group who put the video up (the Richter Scales) stands to benefit from sales of their CD and concerts since there is a link to their site on their YouTube page.

Never mind that the Richter Scales is a not-for-profit a capella group that sold a total of eight CDs the week the original video was up. Under copyright law, it doesn’t matter. Damages are based on how much Hartwell could have sold those pictures for, and since she is a professional photographer, that would have been a lot. Unless, of course, all the publicity around the image has helped to drum up more business for Hartwell.

Like I say, you can argue both ways. Is the work transformative? Yes, the image takes on a new context within the video. Is it covered under parody if the video is not making fun of Hartwell’s image, but rather using it to make fun of Silicon Valley? Yes, because Hartwell as a Silicon Valley party photographer and the image in question of Valleywag editor Owen Thomas are both part of the very culture being parodied. (Thomas also happens to hail from Business 2.0—Time Inc. was right, that magazine was nothing but trouble). But Richter Scales took the entire image, and that is not allowed! Yes, but how do you take an “excerpt” from a photograph, unless you crop it? Anyway, a court might decide that the brief flash of Hartwell’s image in the original work constitutes an “incidental reproduction.” (And, no, I am not a lawyer).

The debate has spilled over into our comments. Blogger Robert Scoble points out that photographers like Hartwell are somewhat hypocritical, saying in one comment: “I think it really is lame to take pictures of people (who don’t get a cut of the profits) at parties, without being commissioned, and then send in invoices for that work when it gets used in a parody video.” Hartwell offers a lengthy response, noting the picture was in a public place and was for a news publication rather than for her own private commercial work. At the end, she sums up:

Finally, licensing images is how photographers make money. I didn’t invent the system, I just have to play by the rules. . . . I think a lot of the hatred here springs from the fact that people don’t understand the business of photography and how it is billed. Fair enough…But if you are going to point the finger at me for doing something that everyone in the photography business does, and say that I’m doing something unusual or unethical, I’m suggesting you educate yourself.

In other words, don’t blame Lane Hartwell, blame the system. Okay. The subsequent pile-on by the other photographers confirms that the system of both copyright law and how creators get paid for their work does not translate to the Internet. As Michael put it in his original post after the first takedown:

Societal ideals around what constitutes ownership over art are changing. People who try to protect and silo off their work are simply being ignored. Those that embrace the community, and give back to it not only allowing but asking for their work to be mashed up, re-used and otherwise embraced are being rewarded with attention. At the core is a basic implicit understanding – if you want to be part of the community, you have to give back to it, too.

There needs to be some reciprocity. But the old norms don’t scale. Getting permission from a hundred different photographers does not scale. It is, in fact, a limit on free speech because that video might never be made under those old rules. Let me suggest a better solution: under a certain threshold or for works that are truly non-commercial, images and other content available on the Web should be free to use. Once something hits a commercial level of popularity, if indeed it is commercial, that is when the licensing fees should kick in.

What would happen then? More people who are now “stealing” content would register for such licensing regimes, and photographers like Hartwell would see a flowering in their sources of income. Each license might not be what Hartwell and her ilk are used to in the offline world, but taken together they could become more significant. Now all we need is a startup to put such a licensing registration system into place. Any takers?