Tuesday, June 24, 2008
Naked In The Courtroom - The Web And Copyright
The Internet has opened a can of worms for photographers struggling to keep control over images while also seeking to get their work seen by the public and image buyers
Have you ever had one of those dreams where you're standing in the middle of a courtroom defending the copyright of one of your images when you look down and realize that you're naked? You will. There's an unprecedented number of copyright challenges facing photographers occurring on the Internet. Images are getting lifted from services like Flickr and photographers' websites at an alarming rate. The hijackers are using the images to illustrate blog entries and YouTube videos. The harsh reality for us shooters is that it may be perfectly legal.
Mine, Mine, Mine!
I never could have imagined that my diligence in protecting my images against unauthorized use could, in some instances, be perceived as an assault on the First Amendment right to freedom of speech. It has been a dormant scenario in our industry that has become incredibly active in the past year for one reason: the Internet.
The fair use exception of the U.S. copyright law was created as a balance to the First Amendment right to freedom of speech. Fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner.
If this definition seems vague to you, your instincts are accurate. It is vague. The lawmakers who created the fair use exception didn't want to limit the definition of fair use. They wanted the meaning to be expansive and open to interpretation, just like the First Amendment protection of free speech. This strategy encourages that each fair use defense against copyright infringement be presented to a legal entity for interpretation, an action that costs the defendant (the photographer) legal expenses.
Until I had finished the research for this article, I was entrenched in the “if I shoot it, it's mine, mine, mine” camp. But now I've come to understand that this attitude is contrary to the functioning of a democracy. If I want to protect my work from being appropriated for endeavors covered under the fair use exception of the copyright law, I better keep the work off the Internet or, more appropriately, out of public access.
The Case Of Lane Hartwell And The Richter Scales
In Northern California, an a cappella group named the Richter Scales, a group of guys who sing as a hobby, created a video called Here Comes Another Bubble. It's a parody of the current Silicon Valley dot-com bubble put to the music of Billy Joel's We Didn't Start The Fire. The video was released on YouTube and quickly gained a massive number of viewers.
Part of the video features a montage of photos of some of the current crop of players of the Silicon Valley bubble. An image of Owen Thomas, the managing editor of the Silicon Valley tech gossip blog Valleywag, shot by photographer Lane Hartwell, appeared in the video without her permission. She reacted by notifying the Richter Scales via e-mail that they were using her image illegally.
The Richter Scales responded that they wanted to arrange a phone call to discuss the issue. Miss Hartwell asked that they continue the conversation via e-mail so that there would be a written record of the discussion. (All you photographers take note of that last sentence.) The following day, The Richter Scales sent Miss Hartwell an e-mail explaining that they had spoken to a lawyer, and their use of her image came under the fair use exception to the copyright law.
Understandably miffed that the response wasn't more in the vein of “what can we do to resolve the situation,” Miss Hartwell sought the advice of a lawyer. He suggested that she take advantage of the DMCA (Digital Millennium Copyright Act) take-down request on YouTube, which she did. The exceptionally funny and well-produced video was removed from YouTube.