Analysis on The Lane Hartwell “Bubble” Controversy

Typically, I don’t comment on ongoing controversies, especially ones that I’ve already talked about on the Copyright 2.0 Show.

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:

  • Attribute Obsessively: If you use other people’s content in any way, attribute, attribute well and attribute graciously. It is best to follow industry standards here and to start out with the intention of doing so rather than having to go back and do it later, when it is much harder.
  • Don’t Go Public: Nothing is ever gained by going public with a copyright dispute. When the Richter Scales mentioned it on their blog before the situation was fully resolved, they helped spark the controversy and, in a way, pushed Hartwell’s hand. It didn’t encourage cooperation and negotiation, which is what was needed.
  • Respect Fair Use: Fair use is such a murky area of the law that relying on it is dangerous and filing a DMCA notice against a potential case of it is equally risky. Save your DMCA notices for the real bad guys. There are plenty of plagiarists and scrapers out there.
  • Remain Calm: When emotions get involved, as they often do with content theft and plagiarism issues, it is easy to lose sight of how important a case really is. Some are more important than they seem, others are less. This case was the latter. It is important to focus less on feelings and more on legal issues and how a case of plagiarism can potentially help or hurt you.
  • You Can’t Silence Through Copyright: Finally, it is important to remember that, while you can use copyright law to stop true abuse of your work, using it to silence what is seen as creative expression never works. When Hartwell filed her notice against the video, it had passed its peak. It had been online for over a week and the Web had started to move on. However, with the notice filed, reuploads of the video are more popular than ever.
  • 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 Licensbtefxvtxsrrwyayfrzauxfcrubwfcbbxe 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.

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