Will Video for Food » Here Comes Another DMCA Whiner

Here Comes Another DMCA Whiner December 22, 2007

Posted by Nalts in : Online Video, copyright , trackback

I try to be fairly objective on this blog, but I really have no sympathy for whining photographers that hire attorneys because their photos appear for a second in a popular YouTube video. The photographers, like the writers striking, are under the delusion that they’re being deprived of their rightful income. The reality is that there is no damned income.

It’s like a feuding family competing for the box of molded National Geographic magazines their dead father left behind.

Background: “Here Comes Another Bubble,” by “The Richter Scales,” is a case study in copyright lunacy. The penniless a Capella singers stitched their song to random photos they found on the web… because a YouTube music video with a black screen (or worse yet, facially-challenged a Capella singers) just wouldn’t have been as viral. They received no advertising revenue because they weren’t yet in YouTube’s partner’s program (if they were, they would have known the risk, because YouTube puts us through a daunting meeting with an attorney before we get into the program).

Along comes photographer Lane Hartwell (whose image above is used without her permission) and sends YouTube a DMCA notice because she finds one of her photos in the montage.

Explains Richter Scales: “when Lane emailed us shortly after the video was released, we immediately gave her a credit, with a link, in the “About This Video” section on YouTube, but weren’t able to assess whether that was sufficient because Lane wouldn’t talk to us via phone and didn’t respond to our emails with any requests or proposals before she issued the DMCA take-down request.”
Fartwell’s attorney claims The Richter Scales were cavalier, and Hartwell herself said: “the band opted not to work with me toward a fair resolution of the issue. I have to say that I’m very disappointed with the members of the band I negotiated with in good faith.”
This appears to be a divided issue, but isn’t it amazing how radically different these accounts are of what happened before the DMCA notice was filed by Hartwell?

Lane’s attorney friend is sympathetic but acknowledges she has little legal recourse. So what it this about? Standing for principals or fame whoring? I’ve got my theory. (Parenthetically, here’s an article on this subject from Wired, but don’t expect objectivity since Fartwell contributes to the publication).

Now this stupid thing is a debate of magnitude proportions:

Point: “The Richter Scales are benefiting from the video because they are promoting themselves and selling a product (their CD) on their website/blog,” Whining Photographer Ramona Rosales told PDNPulse. “Because of the free use of my image (and all the other photographers/artists involved), they stand to make a profit.”
Counterpoint: These guys sold 8 CDs as of this post. They took the first video down (thus removing all of the coveted stats they had earned, and took a great deal of effort to provide credit to anyone and everyone.

How about you photographers save your energy for when someone is actually making money on your images instead of doing it on principle? Or find a way to put your talents to making your own profit, instead of whining when someone else uses your photos to not make money. There’s no mistaking that the a Capella group violated Hartwell’s copyright, but it’s not like they were out selling her framed photos to line their limos with puppy fur… they didn’t make any money directly from the viral video, and to date have sold a few of their legacy music CDs that don’t even contain the “Here Comes Another Bubble” song.

Here’s the essence of the problem. It’s a good motive gone perverse. Photographers, video creators and a Capella singers are all in the same boat. We’re artists who are not generally making significant dollars via our passion, and so we want to preserve our rights. But do we chase each other down for our fair share of dink, or find ways to collaborate and monetize?

My videos are constantly ripped and posted. Sometimes I’ll alert YouTube, but I usually consider it free advertising. The only time I ever took objection is when someone posted my “Bored at the Mall” on Break.com and made profit from it as it hit ~1.5 million views. But I didn’t go on a witch hunt and didn’t expect to get a dime.

If creators instead invest the time they spend whining about copyrights in promoting their work and monetizing it, things will change. And the only ones who will suffer in that scenario are ambulance-chasing copyright attorneys.

Thanks to NewTeeVee for getting me all riled up before my second cup of coffee. By way of disclaimer, I have no relationship with The Richter Scales and I’m a strong believer in artist rights — hence my passion for models like Revver. But I have zero tolerance for unreasonable behavior like this.

Hey, Lane. If you’ll drop this, I will personally send you a check for their entire proceeds of 8 CDs. But if not, please have fun filing DMCA notices against those strangers that participate in my “Lane Hartwell Video Collage contest” using your Flickr photos (See my video rant).

Comments»

1. yumajohnny - December 22, 2007

I really think this is silly what Lane is fighting over…but, since this is her profession the Richters should have just gotten permission first from the photographers and offered to credit them. It is a great form of advertising though for her either way you look at it now. I mean a lot of people are talking about it on youtube good and bad but the #1 key is people know who Lane Hartwell is now. You never know when you are going to get a million hits on youtube so just cover your basis to start out!

2. R. Shane - December 22, 2007

Kevin, comments on youtube videos can only be 500 characters so I’m placing this here. If you think that what I say is viable then feel free to distribute it however you wish. =D

—————

I’m an active member/user of Flickr. And I first want to point out that I totally agree with Nalts on this issue. The woman is being a mindless money-grubber and is trying to get blood from a turnip. Since she is from Flickr, however, I would like to point out a few issues that are relatively Flickr specific.

Recently, on Flickr, there has been a large stink about images being used without proper credit. Most of these stem from the website of Orkut.com and involve people stealing photos of children and either promoting the children as their own or as though the child has made the profile him or herself. There are several issues at play here.

1.) Sure, there is the issue of copyright infringement (woopidy-friggin-doo). Flickr is expressly not a creative common’s site. Every photograph can, at the photographer’s discression, be made “All Rights Reserved”, “Creative Commons”, and anything in between. Every photo is clearly listed with the photographer’s choice.

2.) In *most* (there are some materialistic assholes out there) of our cases, we just simply want credit (not money) for the image that we have taken. If a video is seen with Nalts in it, then it is a strong possibility that Kevin Nalty made the video. If you see a photo of a beautiful sunset or a child playing in a field then the only way to know who created that image is to give them the proper credit. Many photographers do this with watermarks, but those ruin the presentation of the photo so many choose not to use them. Songs get credit, other videos and youtubers get credit, why not the photographers? (I know that The Richter Scales have done this to the best of their ability thus far and I fully commend them on this).

and, lastly, 3.) A copyrighted image should only be used in a manner that the photographer approves of. The case in point here is especially prevalent with images of children and, shall I say it, pedophile (and pedophile-like) websites and message boards. The common rule of thumb is to not post anything on the internet that you don’t want posted somewhere else. This re-posting on websites like this is on one of the furthest sides of the extreme, but it is a realistic and viable example. I know that I do not want any of my photos re-posted to these sites and if I don’t agree with a certain brand of toothpaste I don’t want my happy-ass mug shown beside of it.

Again, I say that Lane Hartwell has gone WAY too far on this. It isn’t the fact that she disagrees with The Richter Scale’s video, but that she thinks she can make money off of this whole stink. Personally, I’d simply enjoy seeing one of my photos in a video that has been viewed a million times! At the same time, however, photographers (most of them) just want a little credit for images that they rightly own without having to fight to do so.

3. DahliaK - December 22, 2007

I think cases like this do serve to educate the amateur creator public, but the way in which Hartwell acted comes off as tacky. So I hope she feels gratified at her role in educating the public, because that’s about all she stands to gain here.

4. Charles - December 22, 2007

When a photographer presses the shutter release on the camera, he or she OWNS the copyright to the image created. NOT the person who steals the photograph from a website and then uses it without prior written permission from the true owner of the copyright. Nalts, you should do some real research into the subject of copyright laws and why we have them. It does not matter that the illegal users of Hartwell’s images made no money from her photograph. What does matter is the fact that they owe her money for the use of her photograph. As a professional photographer, she has a price for the authorized use of her photographs. This is something you recommended that all photographers do. Quoting your article above, “find a way to put your talents to making your own profit, instead of whining when someone else uses your photos to not make money”. This is exactly what Hartwell is doing and I feel she should send you a bill for the use of her photograph above.

5. sign543 - December 22, 2007

Charles, a lawsuit is about money…one person got it…another person believes they should have. Further, it’s about damages. Can one party prove they were damaged in some way by what the other party did? Follow this through and you’ll come to the same conclusion that Lane’s own attorney did: she has little legal recourse. YouTube pulled the video, but this does not mean that a court of law or a decision-making body would have awarded her anything. No damage = no win. All she really did is damage her own reputation by her goofy whining. End of story.

6. Nalts - December 22, 2007

This is an interesting collection of responses. The mysterious and unidentified “Charles” must be Fartwell’s pseudonym.

7. From Grace to the Gutter « “No doubt about it- that nut’s a genius” - December 22, 2007

[...] Read the story [...]

8. NutCheese - December 22, 2007

I think I am going to sue everyone that makes a video on their toilet and anyone that EVER farts in a video!!!

9. jischinger - December 22, 2007

Dear Lane,
You were at the grocery store last week and dropped your cell phone, I picked it up and handed it to you, remember? I’ll be sending you an invoice for my services next week. I expect prompt payment. Let’s hope we don’t need to get lawyers involved here Lane.

Oh, and God called, he’s asking you to return the imagination and all that inspiration he gave you over the years. There seems to be a little dispute over who really owns the copyrights, he expects full payment, if not now, eventually.

This story has crossed over the line of petty. If Lane Hartwell was ever going to make her mark in life this was it; certainly wasn’t her work, how sad, she had potential, so young too. What some people won’t do for fame and fortune.

Let’s look at this from a civilized and human perspective: All that needed to be done in this situation was for the band to give her and all others credit at the end of the video and maybe links on their web site with a note to check out their great and ongoing work and a thank you very much! THE END. Oh wait, THEY DID!

If any significant money was ever to be made off this thing, perhaps some charity could have been suggested. It was a fluke, political parody and cultural art, something Lane should understand since this is how she makes her living! However, she applies and accommodates this blessing only to herself which proves she fails at life.

They often say what goes around comes around, we will have to see if any of her subjects sue her. Might I suggest getting all those release forms in order Lane, especially, from those free spirited radical attorneys you took photos of at Burning Man. What’s this! You took them down from your site?!

If someone puts a web page together I would be happy to help locate a few of her subjects. This could be a great opportunity to get in on a piece of that law suit pie. YUM!

Oh, and Lane the charity you plan on giving the law suit money to, it’s tainted! How rude to do that to children. This move really highlights low character and a real desperation for attention. Try something constructive like a vlog instead, how stupid do you really think people are? What will you do next, donate your Christmas table scraps to the local food bank? Send each charitable kid a signed Santa photos drinking bleach and wearing a reindeer strap-on for the Holidays?

The only thing that can save you now in the eyes of the public Lane is to blame your lawyer. We’ve all been down that road and even if it’s still a lie and you are really just a greedy opportunistic little sow, odds on favorite we will give you the benefit of the doubt over the lawyer.

Until then, Lane Hartwell will be forever known as the bitch who sued a You Tube Band (laugh). Well, you go girl! Whore away! Get you some of that Fetching Bling Bling!

From Grace to the Gutter. (c)

Note: These words do not reflect the opinion of the owner of this blog. They are for political and cultural criticisms and parody only.
click for for additional pictures and links.

10. Lane Hartman is a Big Whining Meany | Will Video for Food - December 22, 2007

[...] Per my earlier video and post, Hartman proudly took legal action against The Ricter Scales for using a second of her photo in their “Here Comes Another Bubble.” Copyright protection for artists? I’m all about that. But this isn’t a big corporation monetizing a starving artist without permission. This is accomplished photographer kicking the crotch of struggling amateur a Capella group that finally got some attention and made virtually nothing from it. And Hartman has the audacity to get YouTube to move the video, hire an attorney and send the musicians an invoice for her lousy, stinking photo that appeared for a second. [...]

11. Michael - December 23, 2007

It’s not about money, it’s about having control over ones own property. Some folks don’t mind having others use their property freely, many others do.

Among those “others” are many smart, talented photographers who are trying to make a living with their images and need to retain control of how they are used. Knowingly giving up that control for this, or any other usage would hurt the chances of maintaining that control in ANY future attempted misuse of images.

You can’t win this with insults or by encouraging people to steal more copyrighted work for public display. Say what you want about Ms. Hartman, but you simply do not have the law on your side, and she does. She is the victim here, not the so called “starving artists”.

12. R. Shane - December 23, 2007

In this case, Michael, it IS about the money. This particular issue is not about control over the property. Ms. Hartwell was given credit and, when that wasn’t enough, her photo was removed from the video. Her control over the photo was successful.

I’ve had many of my own photos posted in other locations and every time I’ve found them (uncredited) I have asked that they either be credited or taken down. Not once have I had a problem with any of my own requests. In this instance, Ms. Hartwell still retained control over the photo, so her controlling her own property is definitely not the issue. This IS all about the money; money that doesn’t exist.

13. Michael - December 23, 2007

What action has Ms Hartwell taken since the removal of the photo?

Also, as I understand it, she sent a polite notice requesting removal of the photo and the initial response was something to the effect of “Our attorney says we’re allowed to use it so it’s not going anywhere”.

Looks like that is a clear invitation to set the record straight and let them (and the rest of us) know exactly what the policy is, at least here in the U.S.

And if there’s no money to be had here, how can you say this is about money?

As a side note, what if someone were to take that cleverly written song and use it, without permission or credit, to promote an unrelated concern or idea? The artists might not care, but if they did, they would have the right to put a stop to it. No? And it that someone refused to stop using the song, they’d be well within their rights to take further action. I’d be on their side if the situation were reversed.

I’m weary of this “If it’s on the net then it’s free for the taking” attitude of many people.

14. Incredulous reader - December 23, 2007

I am calling bullshit on your supposed history as a marketing person with J&J. Any person with any experience in marketing would be a little more familiar with IP issues than you appear to be.

So, are you ignorant about copyright (not that your room-temp IQ will be a defense in the end) or are you a former marketing person?

Make up your mind — you can’t have it both ways.

At first I felt bad for Lane Hartwell, getting crucified by all of you guys for merely daring to assert her copyright. But now I envy her. She’s gonna be a nice multi-paycheck for whichever of the IP lawyers she chooses, as I’m sure she is getting solicited by plenty of them right about now.

Suggesting other people do the same will play well in court.

Idiot.

15. Kevin Hammond - December 23, 2007

Geez, people, don’t you realize a pageclick whore when you see one?

He is supposedly a “Viral Video Genius,” and a former marketing professional. Some Web 2.0 Guru. He has a Technoarti authority of 79 (wow… how impressive…) with a ranking of (drumroll…)

89,301

Ranking of 89,301 = Poser. Wannabe. Hack.

IMO, one should be at least in the top 1,000 to be a guru…

The only reason this guy is getting any views at all is because he is glomming on to situation in which a few employees of Google, Pixar and PayPal (look it up if you don’t believe me) stole a photo from a self-employed freelance photographer and then behaved like assholes when she called them on it.

Now, Mr. 89,301th-ranked Viral Video Genius is infringing on her content and encouraging others to do the same.

My guess is the members of The Richter Scales will each be getting some VERY uncomfy emails from the HR dept. in their day jobs, (which is a scary thing when you are not talented enough to make it as a musician.) But Nalts does not have to worry. Nobody gives a rat’s butt what he thinks or says.

89,301. Puh-LEASE.

See for yourself:

http://www.technorati.com/blogs/willvideoforfood.com

16. Roger Lutton - December 24, 2007

I just sent this to the editor of Wired:

Regarding the recent Lane Hartwell fatuousness, I urge Wired to strongly considering not hiring Lane Hartwell for any more work.

She has proved, through her short-sighted and cretinous actions, that she has no understanding of copyright law, fair use, or ethics — nor does she have a shred of common sense.

I will no longer be purchasing Wired and will not be renewing my subscription if her images continue to besmirch my favorite magazine.

17. Joe Duck - December 24, 2007

Although I agree Hartwell’s wrong the idea of this kind of “attack” concerns me. You are working to diminish a person, not an idea. That gets creepy and threatening very fast. You are calling for an online mob, right?

Also I’m concerned with your hypocrisy here – wouldn’t you sue if somebody used your commercial vids without attribution? Are you saying it’s just a matter of degree of use?

18. McD - December 24, 2007

Joe Duck:

I agree. The issue IS important. The parties on the two sides of the debate are irrelevant and don’t deserve to be attacked by an angry mob.

This is one of those cases where a court of law is required to resolve the dispute.

The issue for the rest of us is one of public policy and we have a long way to go to win that argument against the absolute control of IP by the right’s holder. There’s too much money behind that position for it to swing towards “Fair Use’ as a commonly accepted excuse.

Fair Use is a legal defense and has no protections and it’s always judged in a court of law if the parties go to court.

So… check the right’s of the images and ask permission. If not then be prepared to potentially face a court action for compensation. Choose the path that excites you to most. No risk, or risk with legal precedent for a defense against damages.

No risk is always better if there are CC images available to tell the story.

Let Lane disagree and protect re-use. Fair enough?

I hope the Richter Scales don’t pay on priniciple becuase they shouldn’t have to pay for a piece of social commentary that re-uses images paid for by Wired. Once Lane was paid by Wired then her work can be re-used for a parody of the Web 2.0 culture. Happy smiling faces of the Web 2.0 party crowd (which Wired paid her to document for us all).

19. Vid-Biz: Sellout Risks, Nalts Incites, Queen « NewTeeVee - December 26, 2007

[...] Nalts Goes Apeshit over Copyright; another holiday weekend hubbub: popular videoblogger invites YouTubers to set up sock-puppet accounts to set Lane Hartwell’s copyrighted photographs to music in response to her DMCA claim to take that popular tech parody video down. (video, blog post) [...]

20. Normal people bore me! - June 3, 2008

Che fine ha fatto …

Che fine ha fatto …

21. Will Video for Food » Richter Scales Sequel to “Here Comes Another Bubble” (Tech Parody to “You’ve Got to Have Hart” - January 10, 2009

[...] The Richter Scales and their controversial “Here Comes Another Bubble?” Common- a photographer named Lane Hartwell sued, and they had to pull the video down? I was furious and held a contest for those who could do the [...]

Here Comes Another DMCA Whiner December 22, 2007

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