I must admit, it’s a rather sad time to be a creative professional these days. Although I have gone on record saying that as a former full-time musician I understand music piracy (to a certain degree) as it ultimately helps sell your real product (primarily merchandising, concert tickets along with the expected CDs, tapes, records, etc). But when you don’t sell CDs, or need to promote an upcoming tour – as is the case with independent photographers, who make a living based on selling their imagery, and are not simply using their media to promote other revenue streams – my argument and position here starts to break down quickly.
The issue of ownership of digital media is becoming incredibly convoluted due to the ‘mashup culture’ the Web 2.0 movement has brought on. Particularly with photography and imagery. I’ve lots of friends who make their living as photographers, and have a tough time promoting their work online without being subjected to what I’d consider creative theft. Fortunately the bulk of my own personal songwriting is either locked in a vault at an unnamed record label (I’ll tell that story in person, but not online), or in my own possession and not distributed – most of my professional music career has been studio and session work, focusing on other people’s songwriting. And my photography, although exhibiting an occasional spark of talent, is mostly average in quality- but despite that, I’ve granted usage permission to many people who’ve asked to ‘remix’ a picture here and there from my Flickr photostream. Hey, in general I don’t mind contributing a bit here and there to the mashup culture. But I also don’t make my living as a photographer, so the benefit-to-risk factor is extremely low to me anyway.
Enter the Lane Hartwell controversy.
In a nutshell, Lane Hartwell, an independent San Francisco photojournalist who has published her work in many publications including Wired magazine (among others), noticed a recent ‘parody video’ on YouTube using one of her copyrighted images. Now this is a key point- her image in question was reportedly posted on Flickr with an ‘all rights reserved’ copyright notice affixed to it. In a normal world, ‘all rights reserved’ should mean exactly what you’d expect- she does not want people to use her images without her express permission.
The guys who used this image were reportedly contacted by Ms. Hartwell and asked to not use her image, despite the fact that it only appeared for roughly a second in the video. They (reportedly) either declined or simply did not comply, and Ms. Hartwell – finding this incident the straw that broke the proverbial camel’s back after being creatively thieved many times in the past – consulted an attorney who was able to have the video removed from YouTube through legal channels. Now I’m certainly not a fan of indiscriminate litigation, but I can understand being frustrated with watching your work be repurposed without your permission and looking for some help to try and address the problem.
(You’ll noted I use the words ‘reportedly’ and ‘allegedly’ quite liberally within this post as I’m sure that both I and the rest of the incredibly judgmental online communities who have seen fit to comment on this subject do not know the entire story behind this with clarity.)
Anyway, once the video was taken off of YouTube, all hell broke loose. Lane’s now being subjected to verbal harassment, misogynistic slurs and flat out hatred for simply trying to protect her own work.
Web 2.0 analyst Michael Arrington, a lawyer before cashing in on the recent bubble economy with his site TechCrunch, went on record saying that Lane Hartwell was flat out wrong. ‘Fair Use’ provisions – being as the image was used in a parody – reportedly allow the video producers to steal her work without asking, and use it however they see fit as the video was simply a parody. No credit, no need to even ask her permission before taking the image- he implies that she’s an attention hound capitalizing on the situation to get publicity. Even worse, that she’s ‘ruining everyone’s fun’ by not wanting her work remixed- although the license agreement stated on her Flickr account should have made that clear before they decided to lift the image.
Emm… WTF?
Now again- I understand the ‘mashup’ culture is all about remixing and combining a conglomeration of assets (ill gained or not) into new forms. But these guys couldn’t even ask permission before using her photo, and give her the benefit of consent? Or even just simply read – and honor – the explicitly-stated license she’d placed on the image to begin with? And the insinuation that simply expecting your wishes regarding your own property to be honored is ruining the fun for thieves who would usurp said property is absolutely asine, regardless of ‘fair usage’ or not. It’s one thing if she hadn’t stated any license for her image, but she did- it was ignored, but according to Arrington, she’s still a party-wrecker for not having a sense of humor about being ripped off.
Shit- if I was putting up with the abuse Lane Hartwell’s getting right now, I’d expect my sense of humor to be stretched thinner than Kate Moss on a coke binge. And that’s putting it mildly.
If this is the state of our intellectual property laws right now, then I submit we need to fucking reset the system and start over. Even rappers who snag small samples of previously-published songs are well familiar with the need to acquire permission before doing so, and life’s been just ducky since that flap came to a head back in the early ’90s thanks to hacks like Vanilla Ice who tripped over their own egos. But today, simply as Ms. Hartwell had the poor judgment to post her image online, it’s – according to Arrington – fair game for taking and using in any way anyone sees fit – simply as the end result was a ‘parody’. Forget integrity and even good karma in asking someone’s permission before taking their property- since online imagery is easy to take, it’s apparently now OK to do so. Does that mean if I left a Chevy engine in my front yard, behind a fence, with a sign saying ‘PLEASE DO NOT STEAL’, that any jackass who wanted to use it in his own ‘project’ to poke some fun at Ford has the legal right to take it without recourse? Same general scenario.
Fuck that. I say Lane Hartwell was completely within her rights to ask for her photo to not be used in this video, and to take legal recourse when it was without her permission. And I think that Michael Arrington should stick to digging up dirt on the Web 2.0 day traders as although his legal credentials may be intact, his moral foundation is beyond suspect. Just take a look at the comment thread in Lane’s related Flickr post here, and you tell me how you would feel if you simply asked for a little bit of control over your own property, and received the kind of verbal abuse she’s clearly been taking. Methinks you’d probably feel much as she does- ripped off, yet somehow made out to be an opportunistic hack who’s simply trying to grab a spotlight.
The guys who made the ‘Bubble 2.0′ video simply didn’t ask for permission, and have even admitted as such in a reasonably calm tone once they were called on it. But what I find most reprehensible is that people like Michael Arrington, who I previously held in pretty high regard, seem to support this form of creative theft. I’ll simply quote Arrington’s closing shot in his recent post to illustrate my point:
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.
That’s all well and good, but what if you DON’T want to be “part of the community”, as the license statement on Ms. Hartwell’s original image post clearly stated – ALL RIGHTS RESERVED? Simply by posting an image online we absolve ourselves of any rights over our own property? That availability and convenience trumps a clearly stated copyright notice? That position seems utter bullshit to me- and even if you fully disagree with my opinion I’d hope that at least, should your threshold of talent be limited to reordering and remixing bits and pieces of creative product generated by someone elsehttp://www.thebigdark.com/blogadmin/mt.cgi?__mode=view&_type=entry&id=1121&blog_id=1’s hard work, you’ll at least have the courtesy to at least ask permission before just taking your source material, and respect the owners’ wishes should they decline.
The only glimmering hope I can see out of this morass is that others apparently share my opinion. That’s heartening, but I still have to shake my head and wish Lane Hartwell the best and all of my moral support, as she’s standing strong amidst a flurry of asshats who seem to still, in this advanced day and age, think that creativity is something you can steal.
A line needs to be drawn, or this ‘mashup culture’ will find itself hopelessly without source material- as those with the creative wherewithal to generate their own art, music and prose will simply move outside the community entirely. I’m sure a balance can be reached, but it certainly shouldn’t skew on the side of just absolving rights of ownership to one’s hard work due to the ease with which the Internet makes theft possible. That’s just a crock of shit, and another reason I find our legal system hopelessly and possibly irrevocably flawed in the areas of copyright law.
Enough said, soapbox complete.
Updates of note to this saga:
Lane Hartwell makes a public statement on her position. Well put, in fact.
Lane also sets the record straight- there is no lawsuit.
Valleywag – for once (usually I find ‘em pretty hackish) – kinda hits the nail on the head re: Arrington’s related bullshit and venom.
Derek Powazek sums it up elegantly (at least more so than I did). A must-read.
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Scott /
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