Note: Due to a limited posting schedule during the month of October on days where I can not write regular post, I am taking time out to highlight some of the older posts that have become pillars of the site.

Original Post

In December 2007, something of a perfect copyright storm emerged. The Richter Scales, an a cappella group well-known in tech circles for its parodies of the industry, released a song entitled “Here Comes Another Bubble”, set to the tune of “We Didn’t Start the Fire” by Joel. It was an instant viral video on the Web, racking up millions of view on YouTube and other sites.

However, the video used photographs and other images from various sources, none of which were attributed. One of the photos, a picture Owen Thomas, was taken by famous freelance photographer Lane Hartwell, who is known to be very aggressive in enforcing her copyright.

She approached the band with objections about the unattributed use of her work. Though the band provided attribution in the video notes on YouTube, Hartwell wasn’t happy with the compromise and eventually filed a DMCA takedown notice against the video, which resulted in the work being removed.

What followed was a controversy that deeply divided the Web. Many felt Hartwell had overreacted, filing a takedown against what was in all likelihood a fair use of her work. Others felt it was the band at fault for not providing attribution to any of the work used in the first place or, even better, seeking out appropriately-licensed material.

The controversy seemed to reach out to all corners of the Web and continued until the band released a new version of the video, with Hartwell’s image removed and a proper credit roll for the film.

Looking Back

A recent comment to the post drew my attention back to it. It was a case that seemed to fall off the radar almost as fast as it came up. Even though it was a major Web storm for a period, it seemed to die off rather quickly and, at first glance, it appear that it hasn’t had any real lasting impact.

Part of the reason for that is that this really was a perfect storm. An extremely viral video with absolutely no attribution but heavy use of images from other sources, a photographer who is very aggressive in protecting her work and a flawed takedown system that did not allow for the item in question to be removed without deleting the entire work it was within. It doesn’t seem that we’ve had such a storm since then and it may be unlikely we will.

Part of the reason is that YouTube has since revamped its takedown policy, though most of the changes have focused on audio and it does seem that more YouTube users are becoming aware of the need to attribute where they get their content from, even when they intend to make a fair use of it. It seems most people are wiser about these issues, possibly in part because of this.

The other reason though is that this particular incident was so avoidable. Either side, could have taken steps to head off this explosion but both seemed determined to press their case as far as they could, perhaps not fully appreciating where it could lead. Granted, it made both household names in tech circles, I seriously doubt that either are grateful for the headaches and firestorm.

But if there is a lasting impact of this, I hope it is that it brought these issues to the forefront and both remixers and copyright holders learn from it. However, if the recent study by Creative Commons is any clue, things may be better but there is still a long way to go, considering that 15% of remixers say that they “rarely” or “never” give attribution.

There is clearly still danger here. Hopefully though we can avoid another blow up like this one.

The Video

With credits, of course…

The new version of the video, which The Richter Scales refer to as version 1.1, not only adds a full credit roll, but a link to a static credits page and also removes Lane Hartwell’s original photograph.

This resolves all of the known copyright issues in the video itself and, it would seem, clears the video for a long run on YouTube. However, the issue is not resolved and, in fact, some elements of it seem to be only intensifying.

Hartwell’s Reply

Hartwell, for her part, seemed unimpressed by the modification and reupload of the video. She posted an update to her blog stating that she is continuing to seek compensation for the use and is sending an invoice to the Richter Scales.

According to Hartwell, she will use any payment from the invoice to fist pay her attorney and donate the rest to the Kids with Cameras charity, a non-profit that teaches photography to children.

There has been no indication from The Richter Scales as to whether or not they intend to pay this invoice upon receipt but, according to Hartwell, they had already declined this offer during the early negotiations.

Some Analysis

Since my original article divided up the “Mistake Were Made” section into two parts, one looking at the Richter Scales and the other at Hartwell, I’m going to do the same here with the follow-up.

The Richter Scales

The Richter Scales came through beautifully in this matter for the most part. The new video includes a full credit roll and I particularly like the addition of a static credit page that is referenced in the video. I think it’s a great idea and should be looked at as a possible industry standard for how content used in web videos is attributed.

It is a neat idea and a great way to combine standard industry practices in movie making with the Web.

I am slightly disappointed in their statement “when we created Version 1.0 we didn’t see similar YouTube videos crediting every image used, nor did what we read about fair use point us towards the need to do so.”

That seems, in a way, to be an attempt to shift some of the blame to other YouTube members that don’t follow good attribution practices. If that logic is followed, then the fact that about 60% of my writing that is reused is unattributed means that it is OK for others to the same even though it is a clear violation of my license.

Providing attribution is the right thing to do and that is regardless of what others do or what even what the law says.

Still, I am very glad that The Richter Scales have been made “sensitive” to the attribution issue and did such a great job providing it for all of the material used in the video.

Let’s hope that this saga causes others to take more interest in attribution and follow their lead.

Lane Hartwell

My main criticism of Hartwell the first time around was that she was overplaying her hand when it came to the damage the video did to her work and underplaying the fair use issues.

Sadly, her recent move only makes the situation worse.

You don’t run a Web site called “Plagiarism Today” for nearly two and a half years without being a believer in the importance of copyright protection. I sympathize with Hartwell greatly both as a fellow artist and as someone who has had their works ripped off many times over. However, I can not support this action as it ignores both the steps The Richter Scales have taken to make things right and fair use issues that are still present.

Yes, her attorney needs to be paid and I am sure that the bill is eye-popping (I’m yet to see a legal bill that isn’t) but it wasn’t necessary to resolve this issue. When she hired the attorney, she was aware of the fair use questions and the unlikeliness that she would ever collect money from the case.

This is why artists should take the time to learn copyright law themselves so that they can protect their own works on the Web and not require the aid of an attorney save extreme cases where a lawsuit is likely or strange legal issues are raised. It can help save time, money and drama by putting you more in control of your own content.

After all, I’ve shut down hundreds of plagiarists without paying attorney fees. I’ve consulted several as friends, but never as a client, and I have never found myself in the center of something like this.

Resolution

I don’t really see The Richter Scales paying the invoice. They have little motivation to so and, if the invoice includes legal fees plus overage, it is likely to be a pretty steep bill that they would not be able to pay easily.

However, I do think that The Richter Scales should consider donating to Kids With Cameras, not so much to appease Hartwell, but because it is a wonderful charity and everyone should consider it. Even better, in this case, it would be a great way to show that there are no hard feelings and that there are issues bigger than an online feud over a photograph.

Given the time of year, it is only appropriate to be both forgiving and charitable.

As far as Hartwell’s legal expenses go, there is a simple solution. If she truly needs help paying her expenses, then I am certain her fans will be happy to help. They have been very supportive of her through this and I’m sure they would be willing to chip in.

Though it might seem unfair to shift the financial burden over to fans, this model has been used many times before successfully, though typically in legal defense funds.

The goal of supporting artists in protecting their work is certainly a noble one and, even though this particular case was misguided in several ways, I certainly don’t want to discourage other artists from getting help when they need it and I know that her supporters feel the same way.

With that in mind, a legal fund not only makes sense, but might help contribute to a much larger cause as well.

Conclusions

This case is not about who “wins” or “loses”. It’s about finding a fair resolution and one that is both peaceful and practical.

I think this whole ordeal has opened up a lot of eyes to both the need for proper attribution and respecting artist’s work, but also the power of remixing as an art form and the need to balance the rights of the artist with the rights of the person doing the remixing.

Extremists on both sides have had their views dulled a bit by this case and I think, strangely, that this whole ordeal might bring the bulk of Web closer to the center on these matters.

For all of the trolls, insults, heated exchanges and outright flame wars, there is a good chance that this case could, in the long run, help bring about peace.

That is the hope at least. However, whether it comes to fruition is really a matter of how we respond to what happened and how we carry on in the future.

Video

However, the Lane Hartwell controversy does not seem prepared to end. With the flames already fanned by some of the most popular bloggers, the debate rages on as Hartwell released her much-anticipated statement yesterday and the division among bloggers seems to only be growing deeper.

So I’ve decided to take a moment today and look over what happened, what mistakes were made (on both sides) and where things went wrong.

The goal is figure out how a relatively simple copyright dispute exploded into an Internet-wide controversy and how others can prevent that from happening in the future.

Recap: What Happened

As I reported yesterday at the Blog Herald, the whole controversy started when the San Francisco-based musical group The Richter Scales produced a song entitled “Here Comes Another Bubble”.

The song, a parody of Billy Joel’s “We Didn’t Start the Fire”, also spawned a music video, which was comprised in large part of images of the individuals referenced in the song.

The video became an instant viral hit, generating over 600,000 views on YouTube.

However, when San Francisco professional photographer Lane Hartwell found out that her photograph of Owen Thomas, managing editor of Valleywag was in the video, she was upset that the use was not only without her permission, but also unattributed.

Hartwell contacted the Richter Scales and they first offered attribution in the text next to the video on its YouTube page and posted a blog entry saying, in part:

Giving credit is the right thing to do, and while they’re too numerous to mention, and we’d like to offer thanks and credit to all the folks who’s pictures and videos allowed us to create the video, and we’d like to apologize to anyone who feels slighted by our failure to do so in advance.

However, the very next day they reversed that and promised to go through the video and credit everyone who’s work they used. But by then the video was taken down. Hartwell, on the advice of her attorney, had filed a DMCA notice and had YouTube pulled the clip.

Meanwhile, the Richter Scales, on the advice of an attorney of their own, felt that the use was fair and that they were not obligated to do anything at all beyond what they had.

Controversy was all but unavoidable and what can only be described as a blogstorm quickly started roaring.

Mistakes Were Made

The question then becomes “How did a relatively simple and common copyright dispute become such a tremendous controversy and how can other artists avoid it?

Some of the larger elements were in place before the first email exchange. The video was already a viral hit. Lane Hartwell was already a well-known professional photographer in tech circles and she had already spoken heavily on content theft issues involving her work.

Indeed, any action that was going to be taken would have been instantly in the public light due solely to the fame of all involved.

However, with that being said, the worst of the controversy could have easily been avoided if either side had made any changes to their tactics.

The Richter Scales

The biggest mistake by the band is pretty obvious, they didn’t provide attribution for any of the works used and they didn’t follow industry standards for citing works.

Though, in the original video, The Richter Scales correctly attributed Billy Joel’s song, none of the visuals at all were credited.

Their argument that it would have been impractical to give everyone credit falls flat to me. If they had taken proper notes while assembling the video and considered the artists as they were compiling the clip, it would have only taken a few moments to add a credit roll at the end of the video.

Even going back after the fact would not have been too difficult as the video was only a few minutes long and much of it was original content. Given the popularity of the video, the band could have easily crowd-sourced much of the leg work to the fans of the clip. However, initially at least, they chose not to.

The Richter Scales, when compiling the video, put the creativity of themselves and Billy Joel above the photographers whose work they were using. Though it is easy to not see photography as hard work or even art, it is definitely both and the makers of the video showed no courtesy to that, at least initially.

Second, when the band made the decision to provide attribution, they did so in the text next to. the video and not in a traditional credit roll. This is because they, understandably, did not wish to take down the video and reupload it. Doing so would have cost them all of their views and comments while breaking all of the video for all of the sites that had embedded the clip

As frustrating as it would have been, with YouTube’s flawed system for hosting content, it was the only way to truly set the oversight right. If the world had seen that the Richter Scales had made the move voluntarily, they would have been heroes to the Web, self-sacrificing good guys taking huge steps to correct a mistake.

Instead, the video came down anyway, at Hartwell’s hand, and many view The Richter Scales in a very bad light as a result. Nothing was gained and a great deal of good will was squandered.

Lane Hartwell

Though the Richter Scales made some major mistakes in the case, Hartwell is not wholly without blame for the controversy.

First and foremost, Hartwell filed a DMCA notice against the video while she was, supposedly, negotiating with the Richter Scales over the situation. Though the initial response to her requests was understandably frustrating, especially when the band went public with their situation on their blog, an unprofessional move on their part, there was at least some dialog and some attempt to work with her.

Filing a DMCA Notice while in the middle of discussions is akin to a bank robber shooting the hostage and then trying to negotiate with the police. It was a strange move that didn’t earn her any good will.

Simply put Hartwell was not being horribly injured by the video’s use of the image, a brief low-resolution exposure of her photo is not likely to hurt the market for her professional work in any significant way. She had time to negotiate and try to work this out.

Indeed, Hartwell’s biggest mistake was overplaying her hand on how much this use was hurting her and downplaying the fair use issues involved. Yes, photography is her living and, yes, content theft is a major problem that can take food off of her table. I don’t doubt that and I know well what she is talking about, that is part of the reason why I run this site.

However, this video was not likely hurting her bottom line. The photo in question was already published in Wired Magazine and the transformative nature of the use made it a poor substitute for the original. Yes, it was unattributed, but this was not a plagiarist taking and selling her photos under another name nor was it an RSS scraper trying to trump her in the search results, it was a silly Web video that used a low-resolution image for just a few seconds.

With that in mind, the Richter Scales do have a decent fair use defense, even without attribution. Though the parody defense doesn’t hold much water since they weren’t making fun of the image, but rather using it to help make fun of the song, the highly transformative use of the image and the low resolution of the clip lends itself to a fair use defense. If the use had been properly attributed, there would be very little room for doubt regarding that argument.

Since fair use is such a murky area, discounting these issues not only earned Hartwell a great deal of ill will, but also hurt the strength of her DMCA notice, making it likely that The Richter Scales will file a counter-notice sometime in the future.

Non-Mistakes

Of course, both sides did many things right and those things are worth noting.

First, Hartwell was right to contact The Richter Scales about the alleged infringement before taking other actions. The Richter Scales, for their part, did respond the best that they could right off the bat.

Both sides were also wise to seek the advice of an attorney in this case and, though the two attorneys see the case very differently, I can’t fault either of them for that. As I’ve said before, fair use is very murky and usually comes down to what a judge or jury thinks of the facts. No one can say for certain how this case would be resolved if it ever were to become the subject of a lawsuit.

Finally, I can not fault either side for a lot of the inaccuracies that have been swirling and fanning the flames regarding this issue. These were largely the product of an imaginative and ill-informed blogosphere. It had nothing to do with what was actually going on.

Sadly, those rumors were the product of the controversy, not a cause of it.

Lessons Learned

So what lessons can other content creators and copyright holders learn from this? Well, I would offer the following five suggestions:

All of this makes me ask myself “What would I have done in Hartwell’s position?” It’s a tough question that is almost impossible to answer and I can only venture a guess.

Personally, I would have contacted the band and requested attribution. However, once I had gotten attribution in the notes of the YouTube clip, I likely would have left it there. It is not an ideal solution, but better than nothing.

Even with a proper credit roll, most who watched the video would not have known Hartwell was the photographer of the photo. In fact, it is likely that many of those who watched the clip were even unaware it was The Richter Scales singing the song. Their name was not prominently featured either, their logo (seen above) was only displayed at the end of the video and it seems unlikely most of the hundreds of thousands of viewers bothered to follow up.

However, after securing that admittedly meager attribution, I would have launched an campaign of my own. Since the video was so widely seen, being involved with it could have been a career booster. Writing about my involvement, including it in my portfolio/resume and connecting my name with it would have done more good for myself than simply shutting down the video.

Of course, it is easy to say all of this in hindsight. But I do license my work under a Creative Commons License for a reason. Not only do I support the Creative Commons Mission, but I feel that, for my content, it best supports my goals.

Whether or not that is right for Hartwell, I can not say. But it is right for me.

Conclusions

Looking over what happened, I find it hard to lay blame on one party. Both sides made mistakes and everyone involved has contributed to this now-ongoing storm.

These issues are complicated and this case resists any attempt to say Side X is wrong and Side Y is right. Things could have been handled better on all counts. These are issues positioned in murky legal waters and dealing with ethical issues that have no single right answer.

However, I think that some good might come of this. Though some A-list bloggers were quick to attack Hartwell, others have come to her defense and the blogosphere at large seems to be split on the issue. I see many posts in favor of both sides and others ones, like this one, that try to address the complicated issues that lie beneath.

It seems that no one feels as if the Richter Scales lack of attribution was a good or polite thing to do. Though many support the use, it seems almost everyone would have preferred that it be attributed.

The fact that the Web is so divided over the issue is a sign of the changing times. Where, previously, defending your copyright at all was sent as a negative thing, something reserved solely for the RIAA and their kindred organizations, now there is a growing realization that there is a need to both protect the rights of artists and the rights of those that wish to remix and reuse that content.

The debate, right now, is where that line should be drawn and it seems that this case, by being so divisive, may have found about where the middle ground is now.

Though some will always subscribe to the “It’s on the Internet, therefore, it is fair game” mentality, it seems they are dwindling in number. A debate is going on and, though I worry about the quality of this debate as I read through the comments on various blogs, the discussion is extremely important.

So let’s take a moment, look at this case and actually discuss it. There are no easy answers and no wrong ones, but if the Web can bring itself to have a real conversation about it, we might actually have a vague idea where the lines are drawn the next time something like this comes up.