Copyright, fair use and the struggle against online image misappropriation

Lane Hartwell is an exceptionally talented freelance photographer and a friend of mine. She's one of a new generation of phototakers who are attempting to embrace the Internet and online photo-sharing sites like Flickr, posting most if not all of their photos for people to see and using more flexible copyright licenses such as Creative Commons.  As part of this world, Lane has become fairly well-known as one of the main photographers of the Web 2.0/San Francisco technology scene.

Yet, despite their goodwill and openness, photographers like Lane are running into a constant problem: the misappropriation of their images, often without any attribution.  In particular, Hartwell recently expressed frustration at one of her images being used in a recent "spoof" video of Web 2.0 startups by The Richter Scales called Here Comes Another Bubble, a series of images of startup whizkids and parties set to a tune and lyrics similar to Billy Joel's "We Didn't Start the Fire."  Scott Beale has a nice roundup of the situation and the reactions to it here.

A number of folks have asked me whether the use of Lane's photo in the video was copyright infringement or fair use.  First, let me say that as a friend of Lane's, I'm quite sympathetic to her plight and her frustrations with people taking and using her photos without attribution or permission. There are, of course, often extenuating circumstances, but I think it was rude and disrespectful not to at least inform her that the photo was in the video and attribute it to her therein. However, I can't say that the Bubble Video is illegal.

U.S. Copyright law is and always has been a balance between the rights of original creators and the rights of the public and subsequent creators to use copyrighted material. No one person ever has absolute rights under the law to control every use of a copyrighted work.  This applies to you, me, Lane, Disney, Google -- everyone.  For example, anyone can take a snippet of this blog post and copy it into their own blog post or email for the purposes of commenting on what I have to say.  They can do this without my permission and without even attributing it to me or providing the URL. (Whether they should attribute and link, OTOH, is an ethical matter discussed below).

This balance is codified in the Copyright Act in Sections 106 (exclusive rights) and 107 (fair use).  Section 106 says that reproduction and display of another's copyright image can be infringement (I tend to avoid terms like "theft" and "stealing" as they generally do not map well to nonrivalrous concepts like intellectual property) and therefore illegal.  However, Section 107 tells us that "notwithstanding Section 106", there are certain kinds of reproductions and displays that are fair use and therefore, not an infringement or illegal -- even when used without the permission or attribution of the copyright owner. Such uses include but are not limited to parody, criticism, commentary, news reporting, educational use, etc.  To determine whether a particular use is a fair use, courts look at four main factors, including (1) the purpose of the use, (2) whether the original work was published and/or fictional, (3) the amount of the work taken, and (4) the potential harm to the market for the original work. Factors 1 and 4 are generally considered the most important.

So what would a court think of the Bubble Video's use of Lane's photo? Hard to say for sure, but in the end, it probably is a fair use. On the one hand, the Video does use Lane's photo without permission or attribution.  Plus, this is how Lane pays her rent.  She takes and licenses photos for a living.  Uses like this, if they were to become widespread, could potentially undermine her livelihood and thus, her ability to take photographs like the one used in the video.  Thus, there is an argument under Factor 4 that this is not fair.

However, the other three factors probably weigh in the Video's favor.  First and foremost, what The Richter Scales did was what copyright law often calls "transformative use" -- using other people's copyrighted works in a new way that adds creativity and cultural value.  And while perhaps not a direct parody of Lane and her specific work, the inclusion of the photograph in the video was part of an overall commentary on the world that Lane photographs and the people in it. One could even argue that Lane is a part of that world herself and thus, implicitly part of the subject matter TRS intended to comment on.  (Note: I haven't talked to TRS, so I have no idea what they intended). Some courts have found fair use in similar cases involving Barbie dolls, use of concert posters in a book about the Grateful Dead, the Mastercard "Priceless" ad campaign, a Family Guy parody of Carol Burnett, and 2 Live Crew's cover of Roy Orbison's "Pretty Woman." Of course, other courts have come out differently, such as one decision over the use of Dr. Seuss-like rhymes in a book about the OJ Simpson murder trial.  Still, overall, I think a court would find the video transformative and thus, that Factor 1 weighed in its favor.

Factors 2 and 3 would also probably weigh in favor of the Video.  The photo is a published work depicting a factual occurrence (a person at a Web 2.0 event).  It's also being used for that purpose -- to comment on the person being at the event.  The amount of the photo taken is, of course, the whole thing, but with photographs its hard to apply this factor since few photos are useful in pieces.  Courts have also found that when it is necessary to use another person's entire copyrighted work to make your own commentary, that weighs in favor of fair use.  Given that three of the four factors are likely in the Video's favor (including the critical Factor 1), the Video is probably fair and not illegal.

So what's to be done, then, about online photo misappropriation? Well, despite being a lawyer and wanting to find a legal solution for every problem, I don't think looking to copyright law is actually the right approach here.  Copyright law isn't really built for resolving disputes between individuals like Lane and TRS. It's built for resolving expensive and highly profit-driven disputes between large full-scale commercial entities like movie studios, book publishers, software companies, or search engines -- entities with long-standing investments in the copyright system and in-house legal counsel to negotiate issues like licensing.

Ethics, on the other hand, might just be the right hammer for this nail.  Ethical behavior is behavior that leads to the "greater good." It goes beyond the mere moral choices of right or wrong and deals with the broader question of the correct choice for society as a whole.  If we, as an online society, want people like Lane to succeed in their work, to be successful and profitable photographers, we need to take care to promote them in a way that feels respectful and supportive.  We need to make sure they succeed so that they will continue to provide us with amazing photos and make them available online. Equally, if we want people like TRS to be able to make funny videos about the Bubble quickly and easily so everyone online can enjoy them, we must take care to allow creative uses of material without imposing draconian requirements before publication.

So what is the right ethical balance?  Well, I'm no Internet ethicist, of course, so I can 't really say what the proper ethical outcome should be for this or other similar situations.  However, for me, the idea of attribution and promotion have strong appeal.  They respect who the artist is and try to help them thrive in their work.  I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator -- in essence voluntarily offer to post-date royalties if the project amounts to anything profitable.  Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.

Comments

[Brian Walsh]

That is most succinct piece on the subject I have read. Bravo, Jason. Bravo.

[Tara Hunt]

Hey Jason,

So glad you put good focus on the ethics part of this argument. I like seeing the 'softer side' of lawyers emerge. :)

T

[Kathryn Hill]

Hey Jason, this is so funny, I was about to email you and ask what you thought of this issue, but you beat me to the punch. Very informative post, thanks.

[anonymous coward]

I'm going to disagree with your interpretation on factor number 1 in whether this was transformative. The reason the courts protected parody and critique is that original rights holder would usually not give permission to have their works parodied or critiqued. "And while perhaps not a direct parody of Lane and her specific work, the inclusion of the photograph in the video was part of an overall commentary on the world that Lane photographs and the people in it." My opinion is that the courts would not hold 'an overall commentary' as a good enough reason to give people carte blanche rights to use whatever copyrighted works they want - as compared to allowing critique OF THE ORIGINAL WORK.

In the 'similar' cases you cite:
Barbie
Mastercard 'Priceless'
Carol Burnett
Roy Orbison 'Pretty Woman'

None of those parodies would make any sense without the ORIGINAL COPYRIGHTED WORK - they all strongly rely on the original work to make their point. Was the image of Owen Thomas critical to derivative work? I don't think so. Could The Richter Scales have found another image of Owen Thomas that was not copyrighted and have made the same point? Almost certainly. My impression is that the courts protected parody and critique when it's a valuable commentary on the original work - not because the derivative creators were too lazy to find a substitute, or just didn't like the non-copyrighted substitutes.

[Jason Schultz]

@Brian, Tara, Kathryn: Thanks! This is a tough issue and like I said, I'm very sympathetic to Lane's feelings here, so I hope this helps us figure out a way forward.

@anonymous coward: In the Mastercard v. Nader, case, Mastercard made the very same argument -- that Nader didn't need to use their ads to make his point about political corruption. But the Court found that there really wasn't a substitute for the particular message Nader wanted to convey. Like I said, I don't know what the exact intent of TRS were here, so I'm speculating a bit, but I think courts would be sympathetic to their need for material that fit into the particular theme of the video.

Also, all photos are copyrighted, so even if they chose another photo, they would potentially have the same problem with that copyright owner. So its kind of an all or nothing proposition. That's also why fair use isn't limited solely to parodies.

That said, there are cases where television news programs and newspapers have used photographs of events without permission and later have claimed fair use and lost, but those cases tended to be exactly what you are suggesting: cases of laziness where other identical stock photos were available and they simply didn't want to bother licensing them even though they had the money. Plus, in those cases, there was no potential theory under which the news source was commenting on the photographer herself.

[Shelley]

Excellent writing. Specifically, the line:

"Courts have also found that when it is necessary to use another person's entire copyrighted work to make your own commentary, that weighs in favor of fair use."

If the copied art wasn't essential to the finished work, would this still apply? This particular photo was found via a random search in Google, and the video creators just picked the first one they found. There are probably dozens of photos maybe even hundreds of Owen Thomas online.

If this particular photo wasn't essential to the work, and in fact, could be easily swapped out for another, and didn't even have to be of Owen Thomas, would this impact on the question of Fair Use?

I guess another way of looking at this is: should the courts grant fair use in the case of artists who use material based on convenience, rather than relevance?

In addition, by not contacting the photographer, are the artists potentially putting her into economic jeopardy, if she had an exclusive contract with her client? For instance, that the photo would only be published in her own personal gallery; otherwise, it is the exclusive property of the publication?

An economic 'threat' could be perceived in more ways then the potential resell value of the property, couldn't it?

[Jason Schultz]

@Shelley - Good questions. I don't really know how TRS found the photo, but yes, if it was just picked randomly from a Google search, then that would weigh against fair use (although not completely b/c they would have needed to use *some* photo and all photos are under copyright). On the other hand, if they chose that photo specifically for a particular artistic purpose, it would weigh in favor of fair use. So you're right, a lot depends on the purpose of the TRS in choosing that photo.

[Shelley]

My apologies, I just noticed anonymous coward asked somewhat the same question I did.

I did want to say, though, that potentially there were CC licensed photos available that would have granted the rights to use the photo in the work if they had asked permission and the photographer had refused. Or another photographer might have been amenable. Or perhaps Lane would have been amenable, if they had asked, first.

Exactly how far back does Fair use go, before it falls over?

"Exactly how far back does Fair use go, before it falls over?"

Here's the thing: fair use is a flexible defense to any allegation of copyright infringement. This means that there are few exact lines. The further you go down one axis of a particular factor, the further you get out of the "heartland" of fair use cases. So there are easy fair use cases and hard ones. The key here, however, is the purpose and character of the use. This doesn't mean that anyone can take any photo for any purpose -- rather, you have to have a specific transformative purpose that needs to use the work you select for your particular message. As you note, that may be a rare case.

Oh, and BTW, Lane would never be liable to any of her subjects for the unauthorized use of a third-party, so there's no worries about exclusivity agreements on her part.

[Peter]

good post.

[Mike Doeff]

How refreshing to see such a well written analysis of this sticky topic. Thanks!

[Shelley]

Jason, thanks for the response. I'm not sure if you did the second response or not, but thank you for it, or thanks to whoever did.

What you're saying is what I hoped you would say is that whether this is fair use or not is difficult to determine with all the information we know, and there are no absolutes when it comes to determining fair use. No, not even with the four criteria.

I thought I understood it relatively well, but always assumed the artists whose work you used would need to be identified. I 'assumed' it, because, to me, that would be the most important component of using another's work--giving them credit. However, it isn't a part of copyright, at least not in the States. It sounds like it is in the UK, and Canada.

Regardless, if I may paraphrase what you've written, there are no absolutes when it comes to determining what is, or is not, fair use. I write this because right now there are a lot of people throwing absolutes at each other: yes, it absoluty is; no, it absolutely is not.

The ethics, on the other hand, are pretty easy to understand, and what we should focus on. Number one of which is: ask first. Number two: give credit where due.

[Jason Schultz]

@ Shelley - Yup, that was me. For some reason, Typepad didn't keep me signed in.

I agree with most of what you said, although I do think there are some easy, self-evident examples of fair use out there. For example, Prince took down this video from YouTube of a baby dancing in his mother's kitchen to Let's Go Crazy in the background. From my perspective, that's a slam dunk fair use case. This one is a bit murkier but IMO still likely to fall on the side of fair use. But not every case will be fair use and many are uncertain, so folks who want to use other people's photos should be careful and as you suggest, choose respect over convenience whenever possible.

[Matt]

Excellent write-up, Jason. I am happy to finally see the argument that Owen Thomas and his pose in the photo is part and parcel to the subject being parodied.

There is one more potential argument regarding Factor 3: since the video was 320x240 resolution, could one argue that the photo is not being reproduced in its entirety? If the original was a 12-megapixel image (a reasonable assumption), then the derived photo in the video constitutes only 0.0064% of the original. That fact also flows into Factor 4; the market for the original would not be harmed, as the video version of the photo was so severely reduced in size and quality as to make it unusable in any other domain (plus, it was edited to include a Valleywag logo and subtitles.)

Do you think that argument would fly?

[Vomit Video]

Well, you cannot deny that there is no copyright infringmnet even in this analysis. This thing has been talked many times but no one seem to have a solid answere

[-gary]

One point that I have yet to see any of the numerous bloggers of this topic posit, is what else could she have done? There is plenty of analysis on whether or not her case would stand in court or that it was indeed fair use, but as everyone with a decent understanding of case history knows, there is no real definitive measuring stick of when something becomes infringing. Yes, there are most certainly clear-cut cases, but the area between protected and fair use is wide and murky. With a lack of any kind of clear guidance, the only reasonable path she could have followed, in my eyes at least, is a forceful one. She may not stand of chance of forcing any kind of terms on them, but how would she know unless she tries?
The issue of her duty to licensees is also a subject that has been left out completely of this discussion. She may not be responsible to the subject or others that have licensed the image when third-party use occurs, but what kind of image is she creating for herself in the eyes of potential clients if she were to roll over and allow her photos to be used freely by all that don’t seek permission? What incentive do I have as a potential client to license photos that will be pillaged off of her Flickr page or Google? To batter the old adage, why would I buy the cow when I can wait for the internet to deliver me the milk for free?
The hobbyist photographer and other individuals that have no interest in photography at all seem to view this issue very differently from those that actually live off of the work or their art, and I find it near impossible for anyone not in that position to fully understand why it is that she is taking this so seriously.

[Basil Tippette]

Re: Lane Hartwell post

A Flickr surprise for me too.

I sell microstock photos via a well known microstock website. I also post photos of friends and family on Flickr and do not grant a license for others to use my Flickr photos.

I recently read a post on the microstock site's forum about how to use a Google search to see if any of your microstock photos were used on the web.

I proceeded with the Google search and did not find a problem with any of my microstock photos.

To my surprise, I discovered that four bloggers have ripped my people photos from Flickr and have them posted on their site. Each photo was captioned as "posted by (my Flickr screen name)"

I clicked on one of the offending blog sites and I got a pop up warning message from Microsoft that the blog site may be a phishing site.

I reported the incident to Flickr and have received their stock reply that they will look into my report.

I'm upset about the photos being ripped but I'm more upset that my photos could be used without my knowledge for an illegal purpose.

[Jason Schultz]

@ Matt -- Similar arguments were considered and found to weigh in favor of fair use in the context of the Grateful Dead concert poster case and the Kelly v. Arriba Soft and Perfect 10 v. Google image search cases. There, however, it was about the use of thumbnails instead of full-resolution photos, but the analogy might be apt.

@ gary -- I think Lane has every right to take this situation seriously. I am very much on her side from an emotional level and believe very strongly that she has a right as an artist to control most of the uses of her art. And from an ethical view, I think what TRS did was highly suspect, if not dead wrong. I was merely pointing out that legally, it isn't clear that there was a violation of copyright.

But yes, it begs the question of what photographers can do about the problem. Many have suggested that one should only upload low-resolution photos and save the higher resolution ones (the ones that are more likely to have value to commercial magazines and news outlets, etc.) for licensing/sale. I'm sure there are other options as well. But the marketplace is definitely in flux and it is important to adapt best as you can.

@ Basil -- As I understand it, Lane chose to send a DMCA takedown for the use of her photo. If you have a good case of infringement, you can send one as well. A phishing site that is using your photo to lure people under false premises is a pretty good case, IMO, so I would consider using that mechanism in such situations.

[Thomas Hawk]

Jason, thank you for this insightful commentary.

TRS used one of my photos as well in this video without permission or attribution.

I didn't care and felt that their use of my imagery was fair use.

I was actually pleased to see them use my imagery to make new art. I believe that fair use is an important principle to respect as it allows a more fertile landscape for new art to emerge in.

I do not feel that I was derived of any economic benefit due to their use of my imagery.

I'm actually more concerned with people using DMCA takedown requests as bully pulpits to pull down fair use content off of the internet -- especially content created by other artists.

This happened to me last year when Michael Crook effectively used the DMCA to remove fair use imagery in my Flickrstream. Dozens of comments and commentary were permanently erased from a community of ideas due to abuse of the DMCA and the subsequent blind enforcement that followed.

Cases like this bother me more than unapproved and unattributed fair use of imagery.

As much as it may be unfortunate when people are not asked or attributed when their work is used, it's far more chilling to me to see legitimate fair use censored at the hands of those who misunderstand the basic principles of fair use and rush to use the DMCA.

As an aside, could you comment, if possible, on the art of Richard Prince and whether you feel that his rephotographing as art would fall under fair use or whether it would be copyright violation.

http://en.wikipedia.org/wiki/Richard_Prince

[Eric Gonzalez]

Well done Jason. This captures exactly how I feel about it.

Besides, it's all turtles. Yes photography is work, but if i'm in a photo, should I too get compensated? Before answering no, consider I may be a model and may have spent hours getting ready to look the way I do. Slippery slope indeed.

[lane becker]

oh, i don't know, jason -- in this discussion you're the closest thing we have to an internet ethicist, and only the second person to address this matter as such (after derek p, who implied but didn't explicitly state that this was ultimately an ethical matter.) plus you have the legal background that allows you to know when such a distinction can and should be made.

so maybe you should take it up as a career! as an adjunct to the new job, i'm sure. worked for randy cohen.

[ripley]

This is a great discussion of the intertwining legal and ethical issues. I applaud especially the willingness (rare among lawyers) to separate out the work of law from the work of ethics. I agree with all of it (including the fact that Lane is a fantastic photographer) and I also wish she was credited.

But I also agree that the law should not be interpreted to mean credit must be enforced, because it gives too much power to copyright owners. Although it wouldn't be arbitrary or wrong in Lane's case (in my mind, because I agree with her), allowing the law to work in this way would overall be a huge benefit to enormous copyright owning institutions more so than to individual artists (who themselves might suffer from increased corporate control of art), and they would police access to art in ways that would harm the rest of us, artists and fans and the public.

[Alex Barnett]

Great post.

I would say that I think the use of Owen's photo is important in the video:

1. It's taken at a web 20 event.
2. Owen is editor of Valleywag, which rides the Web 20 bubble.
3. Owen is symbolic of those who write about this world, just as much as Mike Arrington, or any of the others contained in the images.
4. Owen is smiling smuggly, which is part of the joke.

Lane, by taking the photo is the butt of the TRS joke as well as Owen.

I know her feelings were hurt, both for not receiving attribution or notice of the use of the image, and because she and her image of Owen find themselves the butt of the overall bubble joke.

But it is fair use. She needs to understand that putting content out there means that it is only partially controlled by her.

Others can parody her, and her subjects, at will, if it falls under fair use.

This is clearly what's happening in the video. Smug web20 people are parodied.

It's time for her to lick her wounds and move on. And stop abusing the DMCA just because she doesn't like something that is legal.

[Shelley]

The fair use defense seems to have died a death. TRS just released another video, with credit this time, which would seem to bely their assertion that giving credit would have been a hardship. In addition, they did replace the one photo with a) another picture of b) another person. As I mentioned earlier, which seems to support my original statement that they just grabbed any old pictures, and few were essential to the work.

Worse, I don't believe they were truthful when they said they got a lawyer to advise them originally after Hartwell contacted them, because I can't imagine a lawyer advising them to replace the video with a new one without the picture, and then say that the original was shown a million times.

Additionally, I can't imagine a lawyer thinking it's wise to write that TRS is a 'not for profit organization', when the non-profit results from lack of sales, not from them being a registered not-for-profit organization.

However, by saying they obtained the services of a lawyer, they forced Hartwell into getting a lawyer, putting her to unexpected and unreasonable expense. Well, we know where this can, and rightfully, go.

I think your reasoning that this was more an issue of ethics than copyright law, and frankly I find the ethics of TRS to be dubious, at best. But that is my opinion and everyone has their own.

I did want to say though, that it's been extraordinarily delightful to read your reasoning, and your responses. That's not polishing the apple: I love the law, I enjoy seeing discussions of the law, and seeing it discussed with such care and thoughtfulness. Patience, too, in answering the non-lawyers in your comments.

Thank you.

[K. Orona]

Here's a scoop for all artists, photographers, photographers who think they are artists, and the public in general: Don't post, upload, or store ANYTHING on the web or on anything connected to the web that you don't want to see somewhere else. That advice also goes for selling/licensing images to online magazines, paper magazines etc... It is a reasonable expectation to have an image once published in a magazine show up in another use. Posted on a door, bedroom wall, part of a 3rd graders art project or the like. Along those lines, (Flikr/Picasa users) the illusion that you can somehow control what happens when you post "your" material, or that you can control who has or will have access to it is a joke. If the Chinese can roam around the networks of our defense labs without being detected (http://en.wikipedia.org/wiki/Titan_Rain), it's a safe bet that anything you have or anyone else has connected to the web is equally vulnerable if not more. All artists have the ability to prevent any use of their digital representations. Don't share them with anybody. You also don't have to work in that medium. You may have a hard time making a living but decide what is worth more to you...getting paid for the original work or trying to collect money ad infinitum. More artists need to reconsider their "how am I going to get paid" business model. Sell people the pictures you take and give them the rights to reproduce it as often as they like. Wedding photos, family photos, etc. Imagine how much more business you would get.