At the risk of beating an already unrecognizable horse even further into the ground, I see that there’s a new “Bubble” video from the band Richter Scales available, with the offending image of Owen Thomas — the photo that Lane Hartwell filed a DMCA takedown notice about, forcing YouTube to remove the video — replaced by one of Kara Swisher from All Things D.
So is the whole sordid affair over, finally? Not really. Although the band has added credits for all of the images, apparently that’s not enough for Ms. Hartwell. She says she wasn’t able to come to an agreement with the band because they refused to pay her for the photo, although she doesn’t say how much she was asking for. She says she was planning to use the money to pay her legal costs and then donate the rest to charity.
Contrary to what some have suggested in comments on my previous posts (here and here) I don’t wish Ms. Hartwell any ill will, and I can see how she would be irritated that people keep taking her photos. But that doesn’t change the fact that what she did was wrong, and asking for money is even wronger. So the video got a million views on YouTube — so what? A startled prairie dog got 10 times that many.
If you want to read my thoughts in more detail, please have a look at one or both of my previous posts — and read the comments too, because there are some good ones (and some not-so-good ones) in there. In a nutshell, I think Ms. Hartwell’s actions are part of a trend that is chipping away at the principles of “fair use” and creating the impression that copyright law’s sole purpose is to act as a weapon for artists and content creators to police any use of their content, anywhere, for any purpose.
A photo that has been previously published and appears for less than a second in a video satirizing (in part) the subject of that video is fair use, plain and simple. Richter Scales doesn’t owe Ms. Hartwell a penny. Would it have been better if they had asked for permission or given credit? Yes. In their post on the subject, they say they tried to contact the photographer, but she was too busy filing a DMCA takedown notice.
There’s a good analysis of the issues behind this event at Plagiarism Today, and Chilling Effects has a good overview of fair use.