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.
