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

[Barbara]

What bothered me most about the use of this photo was that the video is a message about people making lots of money, and here is a photographer honestly doing her work and expecting to profit from it, and someone blindly takes advantage of her work as if it's nothing.

I personally didn't find the video amusing, and I doubt I would've even if I didn't know about the misuse of Lane's work. But then, it's not a topic I'm interested in. I would also, because I'm not interested in the topic, never have seen or had an interest in the photo if not for her complaint. But I know what it's like to struggle in a business where it's difficult to make a buck or to make progress as an individual, and the smug message combined with the misuse of the photo bothers me. Even if it was fair use, it was sloppy, rude, and lazy use. I know of collage artists who care about credit for work, and are meticulous only to use public domain elements or to get permission for what they use. I see the same in articles in art magazines, where even if a liquor ad is reproduced, careful permission and attribution statements are included (where one would think the liquor company would just be happy for some bonus adertising space).

I can see the quality of Lane's work in that photo, and I hate to see any individual's work devalued the way I think the makers of the video did hers. Perhaps they meant no harm and used it with the best of intentions, but the fact is, they got a lot of attention from that video, which may very well make those who were identified some money in the future; and, while her photo got some attention too, she didn't, until she complained.

Whether fair use legally requires attribution, ethically I think it always does. Otherwise we encourage a culture where people are devalued and trampled over in the quest to make money, making our world more and more predatory, and forcing it to only serve big business and big money interests over people -- which is exactly where we find ourselves today. In my view money is worthless if people aren't well served in the process of making it.

[marcus]

What do you think about TRS now having re-released the video without Lane's photo?

@Thomas Hawk: I hadn't seen the Richard Prince stuff before. Very interesting. Fair use would certainly be a defense, as it is arguably transformative in some sense, and depending on the photo, one could also argue that his "rephotographing" of it was going to the underlying subject matter more than the artistic skill of the photographer.

Also, several people have asked me if it undermines TRS' fair use argument now that they have changed the video and removed the photo, plus credited all the photographers. Legally, it doesn't hurt them in the slightest, as there is a specific rule of law that prevents evidence of "subsequent remedial measures" from being used against you in court. And even without that rule, fair use is determined at the time of the alleged infringement, so it would be at the time they made and posted the original video.

[Eric Hoefler]

Somewhere in either the article or the comments I think I read that the law does not require attribution when using someone else's work. Is that correct?

If so, what ground (beyond simple ethics) do universities, schools, etc. stand on when they fail and/or expel students who use the works of others without attribution (i.e., plagiarize)?

It seems clear that it is an ethical requirement to give credit to those whose work you use, so it seems strange to me that this wouldn't also be a legal requirement. If it's not, any idea what the theory is behind why it is not?

Thanks! This was a very informative and balanced take on this issue.

[Jason Schultz]

@Eric: Under U.S. fair use law, there is no "attribution" requirement. However, under U.K/Canadian/Australian law, there is as part of their "Fair Dealing" statutes. Fair dealing and fair use serve similar purposes, however most legal scholars agree that fair dealing is much narrower and more restrictive than fair use.

As far as how universities handle plagiarism, it is indeed based on ethics and not law. Most universities reserve the right to discipline students for ethical violations of their codes of conduct.

[rdupuy]

I think talk of etiquette actually misses the point. If Richter Scales had understood the potential, for lack of a better word, I will say harassment, that they received from Lane Hartwell, then they would have, not attributed the work or paid the author, but rather simply chosen a different photograph Owen Thomas.

In the end, Lane would have been considerably less famous, but no less compensated.

And that is the true choice facing these derivative works, where to get the non-infringing work...not where to send their money, of which they have none to give for these projects.

I did agree with your main point, copyright law is designed in general for big financial interests, and using these tools to circumvent fair use...is just ashame.

I think Lane, if she is successful, will help place a chill on speech, but I don't see the value to society in doing that.

[TenOx]

While the purpose was to parody, TRS did create a commercial product more than an editorial one, as its posting on Youtube and subsequent showing of more than 1M times would indicate. Above a certain number of views, Youtube pays for user generated content, and posting and later cashing the check signals intent. It's a commercial proposition to both Youtube and the poster assuming that the poster plays by Youtube's rules, including attributions and assertions of copyright: http://googlesystem.blogspot.com/2007/12/youtubes-revenue-sharing-program.html

Royalty Free, widespread distribution of copyrighted work tends to dilute the value proposition of creating fine work in the first place, so in the end less fine work is created. That's not a good direction to head for photography: lowering standards to meet a dilutive price model.

It doesn't seem to be Fair Use for TRS to create a for profit derivative work using a copyrighted work with the primary intent to profit from it, without crediting, notifying, or getting permission of the © holder.

Last, the discussion of ethics is wonderful in a non-business, classroom fantasy sort of way. Business, like politics, works in a law-limited way, when it feels limited at all. The legal boundaries are constantly being pushed as ethic-less entities play realpolitik rules with the unprepared. Watch for it in the newspapers every day.

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