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Case Study: Hartwell, Richter Scales Copyright Dispute
By Mike Pasini, The Imaging Resource
(Friday, December 21, 2007 - 14:32 EST)

Photographer Lane Hartwell files a takedown notice for a YouTube video using her copyrighted image. Adobe's John Nack blogs intelligently about it.

Photoshop Product Manager John Nack has posted a roundup of the recent dispute between Lane Hartwell, a professional photographer, and the Richter Scales, a not-for-profit singing group. It's a comprehensive look at an important issue on which there's little agreement.

The Facts

The facts of the case are not in dispute. The group had used an image copyrighted by Hartwell for use in its video Here Comes Another Bubble. When Hartwell saw the video on YouTube, she emailed the group explaining the image was copyrighted, all rights reserved.

The parties exchanged email for three days when the Richter Scales suggested a three day cooling off period. Hartwell instead filed a takedown notice with YouTube, which resulted in the removal of the video.

The group subsequently reposted the video without her image, although it still included a copyrighted image by photographer Ramona Rosales.

Nack links to Stephen Shankland's CNET interview with Hartwell, in which they discuss everything from how the case evolved to the problem of protecting digital images published on the Internet.

But Nack doesn't stop there.

The Dispute

He also includes a link to Stanford professor Lawrence Lessig's Ted Talk on
user-generated content discussing "John Philip Sousa, celestial rights, and the 'ASCAP cartel' to build a case for creative freedom."

Sousa had argued that "talking machines" would ruin artistic development of music because playing music would replace performing it. We would become a read-only culture. Celestial rights argued that property rights mean air traffic over your plot is trespassing. "Common sense revolts at the idea," Chief Justice William O. Douglas wrote in ruling against the argument. Broadcasting engendered the ASCAP confrontation with BMI, which broke ASCAP. Lessig suggests today's user-generated content restores the read-write nature of culture Souza celebrated. And he's got a few amusing remix examples to prove it.

Is this a new culture or trespassing on copyright? Technology and the law are at odds, Lessig says. He proposes legalizing "what it means to be young" by 1) artists adopting Creative Commons licensing to permit derivative use and 2) businesses to embrace this technology of free use rather than shun it.

If that makes you wish the writer's strike was over so Boston Legal's Alan Shore could respond in (a copyrighted) rebuttal, you're not young any more.

To prove it, Nack links to New York Times columnist David Pogue's experience before an audience of 500 college students. He asked them for a show of hands if they felt one or another copying scenario was wrong. He wasn't getting much of a reaction so he tried this one: "You want a movie or an album. You don't want to pay for it. So you download it." Two hands went up (apparently different people). Pogue was blown away.


Who's right? What's the solution?

Well, you have Lessig's suggestion that photographers stop reserving all rights, at least for some images, so kids can play with them.

For copyrighted material, Nack points to Derek Powazek's "Rule 1 for Collaborative Media." That may be summed up simply as, "Ask Permission First." That may not be as efficient as asking forgiveness, but the high ground has always been higher. And it beats getting invoiced, taken down or sued.

This debate reminded us of the Scott Sherman interview on The Digital Photography Show (http://www.thedigitalphotographyshow.com) with Carolyn Wright, an attorney and photographer, on 10 common misconceptions of the law for photographers. Carolyn is the author of Photographer's Legal Guide (http://www.photoattorney.com/products.html). We wondered what she had to say on all this.

In her blog, Wright suggests the moral of the Hartwell tale is simple. "Infringements are only going to increase. And nobody is going to protect your rights unless you do."

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