Den of Thieves

Susan Mernit has a quote from professional photographer, Lane Hartwell, about setting her Flickr stream to private because of image theft.

What spurred this on was the popular Web 2.0 Bubble video, which I also linked, and which didn’t credit any of the people whose work it used. Hartwell wrote:

Matt Hempey, the creator of the video, saw fit to give Billy Joel credit for his song, and saw fit to give himself and his group, the Richter Scales credit but failed to contact me and ask my permission to license this photo, which is marked all rights reserved. I was not credited, and there also are no photo credits for any other images that appear in the video.

Today, Wired has an article on Lane Hartwell, where she states:

“I wasn’t upset by the video itself,” Hartwell said, but the brief flash of her photograph — without compensation or credit — still rankled. “I thought, ‘Where does somebody just get the right to take this?’”

Hartwell had her lawyer issue a takedown notice to YouTube. Mathew Ingram believes that Ms. Hartwell, and her lawyer, are in the wrong when it comes to copyright:

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period.

A question to the lawyers: does use of a work without giving credit violate copyright law? I would assume it would, though from this page not giving credit is considered plagiarism, but not necessarily a copyright violation.

ValleyWag had an earlier writing on this, and still includes a viable link to the video. In the post, Owen Thomas writes:

I’m not a lawyer, but I’ve heard plenty of lawyers say that fair use is a murky and difficult area of copyright law. The role of photo credits in copyright law is likewise not entirely clear to me. Giving credit where credit’s due simply strikes me as the polite thing to do. And surely not that difficult.

I suspect that the members of Richter Scales were simply lazy. The photo Hartwell took of me is the first search result for me in Google Images. It’s not particularly apt, either; I was working at Business 2.0 when she photographed me.

Thomas also goes on to quote YouTube’s Terms of use, and one thing it restricts is the use of photos in slideshows without getting permission, first.

Regardless, not giving credit should be heavily discouraged, rather than applauded. The Richter Scales group did this video not for the common good, but as a way of generating attention and publicity. How, then, can they assume that the creators of the photos used in the work wouldn’t also feel the same way about their work, contained within the video?

Is it a case, then, that I can go out and grab posts from Mathew Ingram and other writers, and use these to create weblog posts, without giving credit or linking the originals, call the total a ‘parody’, or better yet, ‘art’, and Mathew would not see any harm in such? After all, I meet his interpretation of fair use: I’m using published work, parts of the whole (the whole being the entire weblog), using in a post, which will eventually fall off the main page, and I can’t see how this would hurt Mathew commercially. I mean, does he sell his posts–five for a dime?

Tom Stachowitz writes:

This woman is a professional photographer and if someone wants to use an image of hers – even if it’s for something completely noncommercial – she deserves to be respected. How can anyone reasonably assume that you can just go out and take whatever piece of creative content you like without paying for it or even making a note of where it comes from? Worse, how can people defend the practice?

To me, the payment wasn’t as much of an issue as using the work without giving credit. I imagine that if the Richter Scales group had dropped Hartwell an email, told her about the project, and promised to give credit–and then gave it–Hartwell most likely would have given them permission. But they assumed and took and basked in the glory that they received for their work, without once giving a nod to the creators of the photos. They took, they did not pass on.

TechWag did mention that the heart of this problem could be not that her photos are online, but where they’re located: Flickr. People have taken to using Flickr like fisherman take to lakes stocked with fish. Flickr has tried to limit this by putting up a DIV element covering the photo so it can’t be right click copied. To copy the photos now, you have to deliberately look for the photo in the page and access it directly to bypass this barrier. This goes beyond “Oops, I thought it was OK to copy”.

I get requests, about every week or two, typically from naturalists sites or organizations to use bird or insect photos. I’ve never said no, and have generally given the sites free run to use any of my photos, as long as they give me photo credit. Asking for photo credit does not inhibit their use of the pictures.

I’ve now posted a photo use policy in the menu, which means such sites don’t specifically have to ask permission, first–if the use is not for profit. One thing that hasn’t changed, though, is asking that I be given photo credit.

If we get to the point where we assume all photos online are ours for the taking, without giving credit, rather than advance the state of art, we may inhibit it, as more photographers choose either not to put their works online for viewing–or choose to put them behind privacy barriers. Worse, if we get to the point where it’s “OK” to take pictures, or writing, or code, or anything of this nature without giving credit, we’ve become nothing more than a den of thieves.


In comments to Mathew Ingram’s post, Michael Arrington writes:

Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with “giving credit.” It has to do with being forced to license work unless it falls under fair use, which this clearly does.

Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.

One could also turn that around back to Mr. Arrington: since it was a ‘woman’ photographer who issued the takedown against a ‘man’ video creator, according to Mr. Arrington, Hempsey is automatically right while Hartman’s automatically wrong.

Taking this one step further: I, a woman, disagree with Mathew, a man, while siding with another woman. And therefore, according to Arrington’s logic, that makes me doubly wrong.

Second update has a more detailed look at the issue, both as an amateur photographer and friend to Hartwell, as well as links to several sites with comments.

Third update

Excellent coverage of commentary at Wired including a comment from Terry Gross, the IP lawyer that Hartwell hired.


Lane Hartwell’s post on this issue.

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44 Responses to Den of Thieves

  1. Shelley, I responded to Mike’s comment on my post — I said that I’d rather keep the discussion focused on copyright, rather than bringing the whole sexism angle into it. I fail to see how that’s relevant, and I wish he hadn’t made that remark.

    In any case, if you were to use short sections of my blog posts in a photo montage or a video clip or a poster or some other work that was meant to be funny or witty or just creative, I would have absolutely no problem with that.

    And even if I did, I believe the principle of fair use would cover you, so please be my guest.

  2. Luis Villa says:

    Arrington is a prick, but he’s got a point; copyright (in the US) includes no right of attribution. Either it is copying (and hence illegal), or it isn’t; whether or not credit is given has nothing to do with it, legally speaking.

    (You can create attribution requirements with a license (as Creative Commons has done) but that doesn’t sound like it was the case here.)

  3. sigh…
    Here is yet another person who did not READ the damn manual, aka terms of service…..

    ”However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:


    With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.

    With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.”

    those of us that have been here longer than most of these folks have had pubic hair, have already figured out that giving credit and simple email usually clears up any difficulty.

    The web is one of the few places where it is easier to ask permission than forgiveness.

  4. Shelley says:

    Mathew, you really must stop sucking up to me.

    As to the issue, because you feel comfortable with the act doesn’t mean everyone does. Courtesy demands we ask before taking. I liked the video, but that doesn’t make the actions right. Or Hartwell wrong, because she did not feel comfortable with the act.

    Luis, it would seem that Hartwell’s IP lawyer did issue the takedown based on the use of the photo, not specifically use of the photo without credit. Frankly, it’s the latter that really bugged me.

    “The web is one of the few places where it is easier to ask permission than forgiveness.”

    Agree. No matter how busy, I’ve rarely had any emails ignored by people. I did once ask a site to use an image for own web design and they, nicely, declined. I didn’t use the image. I would have liked to, but I respected their wishes.

    Respect — I don’t see a lot of this related to this issue, and on more than one front: respect for Hartwell’s wishes, or respect to me because I write on issues related to women, and therefore am seemingly incapable of separating this out when writing out other topics.

  5. Ethan says:

    I confess that I haven’t followed this copyright flap from bell to bell, but reading through your synopsis reminded me of a similar yet different situation as told on the Suburban Bliss blog:

    Because yes, I’ve copyrighted all binkies in a glass. You stick a binky into a coffee mug and expect to hear from my lawyers. Stick it in a high ball and that’s war. The issue isn’t exactly the binky in the glass it’s that it’s MY EXACT LOGO just stuck on top of an article totally unrelated to my website.

    IANAL and alla that, but it seems to me, if the people who made the video saw fit to credit other copyrighted works in their piece, they should have gone all the way. If this was pure fair use, where no attribution needs to be sought or provided, then credit nothing. Not sure why they half-assed it (again, based on the above synopsis).

    And from my distant proximity to the facts of this situation, it seems to me that the best way to keep sexism out of an argument is to not invoke it. Frankly, I read the synopsis from the position that Shelley is a photographer and has an interest in how photos are shared and credited (or not). That Arrington invoked gender in a discussion where it was otherwise absent (so I hear) speaks volumes, no?

    Makes me think I’m really not poorer for not reading TechCrunch. Or TechMeme, harkening back to an earlier aside in a different post (sorry, forgot which one).

  6. Argh … where to begin … disclaimer, I’m not a lawyer, but I’ve studied these issues.

    0) Creative Commons licensing was invented in part to solve this problem! That’s what the license saying you-can-use-this-if-you-give-me-credit is FOR. CC licensing really does have a valid purpose in life.

    1) Concur, attribution has nothing to do with copyright

    2) Mathew Ingram is likely wrong, because of misunderstanding the fair use and parody exemptions. Many people miss this – the parody exemption applies to parodying the work, not using the work in a parody of something else. To be fair, there’s lot of lawyers arguing that restriction is bad law.

    3) “Collage” is an area of copyright law that is even more uncertain than average copyright law, which is saying something. See, for example:
    Artist Koons’ ‘Transformative’ Use of Photo Affirmed by 2nd Circuit

    4) But all in all, a DMCA takedown seems excessive in relation to the practical harm, even if it was a legal right. Not everything which is legal is a good idea, and shooting a fly with a elphant-gun can be criticized even if it’s your elphant-gun.

  7. Karoli says:


    I agree that the whole thing could have been easily solved with an email and credit. However, fair use is in play here and I can see the argument for it in this case.

    Part of the problem as I see it is that fair use is such a murky standard that it encourages people to ‘just do it’ and hope they’re not caught. If there were a set of guidelines that made sense, I’m guessing most would follow it. (Please do factor in my irrational optimism and belief that most people are good here).

    I use Flickr images in my job on a near-daily basis. They are always images licensed under Creative Commoms Commercial licenses and are credited and linked back to the photographer’s profile and original image. It’s not difficult and it lends an opportunity to highlight great photographers who appreciate the exposure. However, there have been some images I’ve definitely wanted to use but haven’t because they are not licensed for my use. Those guidelines make it easy to decide what to use and what not to use.

    Would it be that difficult to set guidelines to use as a standard for content re-use similar to the ones I’m using?

  8. Luis Villa says:

    Frankly, it’s the latter that really bugged me.

    Understandable. It bugs most people- there is a strong intuition almost all of us have that giving credit is the Right Thing To Do. I’m just pointing out that (for better or for worse) that that intuition is not actually part of copyright law (in the US), and when you confuse what we intuit with what is legal, sometimes messy/bad things happen.

    [Seth's point about parody is one of those places where common intuition and law don't really match up, again, to much confusion and unhappiness.]

    [IANAL, but I will be one soon, assuming that I stop procrastinating about my copyright exam by blogging about copyright.]

  9. Shelley says:

    Seth, your explanation sounds, well, ‘sound’ whether you’re a lawyer or not. More than that, it cuts through much of the emotionalism on this issue.

    I agree that using a takedown to get the video removed seems like an elephant gun and a fly, but there is no other recourse on getting the video removed from YouTube. Hartwell didn’t want her photo used. Her photo was not integral to the video. The video could have been reproduced with another photo (except that I read in a couple of places, linked in the post, that Hartwell was not the only photographer who complained). The group ignored her request.

    What should she do? Just laugh it off, say, well that’s the web?

    Karoli, I’ve used CC licensed material a couple of times, and used them properly. The CC license is handy for this. Now, though, I’ve decided I won’t just use photos without asking permission, first. Why? If for no other reason than I hope the photographer feels good that someone likes their work enough to use it. Otherwise, they’ll never know because CC means I don’t have to let them know, directly. I have to link to Flickr, not their sites. They don’t even get the web log referral.

    No, from now on, I ask for permission. I hope it doesn’t irritate folks, but I think I’d rather ask, than not.

    Luis, as I stated with Seth, your point is good. And good luck with that exam. I hope you go into consumer law — we need more lawyers defending consumers.

  10. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned.

    *jaw drop* W… T… F…?!

    Sure, it’s not exactly like I held him in high regard before…

  11. Luis Villa says:

    Thanks, Shelley. My long-term plan is to work for creators who want to work collaboratively with others- right now that means mostly free software folks, but I hope in the long term it’ll mean others as well (wikipedians, CC-license users, etc.) We’ll see how that goes, I guess. Probably much harder than my (c) exam, sadly ;)

  12. Shelley says:

    “*jaw drop* W… T… F…?!”

    Yeah, I know. I should laugh it off, but it’s really put me in a foul mood. Is it, then, that everything I write on is discounted, because of my activism for women in the past? Is this how the Silicon Valley types really view women who “don’t go along with the flow”? It’s an offhand remark that has raises a whole lot of issues. I’m not sure how to respond further on this. Know what I mean?

    Luis, I would say you’ll do exceptionally well.

    Ethan, your point on crediting some but not all was a good one. As for Arrington, it’s not often I’m surprised in this environment, but this one really surprised me.

  13. McD says:

    Mike Arrington is the Rupert Murdoch of blogging.

    Bullies hit below the belt and don’t play by rules of civil discourse. But bullies with media empires make me frustrated but they are often more effective at building an audience than a careful, thoughtful social observer.

    We just need to let the good bloggers know their work and effort to reserach and share their results are appreciated.

    Shelly and Seth Finkelstein come to mind for a high standard of quality in their work, for example.

    Can someone create a Pulitzer type of award for high quality blogging? Would I agree with the results? I guess it depends upon the judgement of the jury.

    A good comment facility DOES enable one form of feedback for good work. Use it.

  14. I might be wrong, as Seth notes, but only of trying to make things simpler by conflating the terms “parody” and “satire” (something that plenty of other people do as well, I might add).

    While it’s true that a parody of a work can be defended as fair use of that work, it’s also true that a piece of satire — such as the Bubble video — can be defended as fair use as well, regardless of the actual target of the satire, since satire has an artistic and/or creative purpose.

  15. Tim says:

    I’d like to see these arguments in cases in which the photographer comes from a jurisdiction without the concept of fair use, just for the fun of it. In an international web this will inevitable.

  16. Kathy Sierra says:

    Just for clarification, what DO you consider fair/acceptable use of someone else’s photos and graphics? I didn’t see you criticizing your friends back in March for not asking permission before using the work of me and several others as “parody/satire/art.” And I don’t think they were doing it simply to spread joy and goodness across the ‘net. Looking back, I don’t think a single person in the everyone-has-an-opinion discussion ever brought up the fact that folks were using photos and graphics created by others (both OF us and BY us and others third parties) without securing permission or giving the appropriate credit. You certainly never referred to your friends as thieves!

    While I have no problem with the satire/parody fair use defense, on the internet, those words have been stretched and abused…they are trotted out to justify virtually anything. Where are the lines for what you consider fair use?

  17. Shelley says:

    Kathy, I have a lot of respect with people who deal with people to their face, rather than behind their backs. I just wanted to get that out of the way.

    Frankly, the photo of you with the underwear? That is parody. That was using a photo of you to parody you. According to what others have said in this post, that actually is legitimate use of the photo. In addition, when you complained, the people took the photo down. The only time it was ever shown after that is when you showed it. And you showed it everywhere.

    As for my friends, do not for one moment believe that I did not express my deep unhappiness with them and many of the things they said. That incident damaged long time friendships, which I value much more than you might expect. At the same time, you made some very dangerous and unfounded accusations of your own. Your actions were, also, subject to criticism.

    Now, if you want to come in and have a discussion on this topic, feel free. But if you want to use this forum to bring up this incident, like you have done in the past–this forum for your private use, is now closed.

  18. I had a longer reply comment, then I saw the latest update … bleh, nothing I say matters.

    Kathy Sierra: Shelley is right. Those uses were classic parody of the subject, hence fall squarely under “fair use” (see the case I linked to in my comment #6, which is very relevant since it’s actually about altered photographs)

  19. Luis Villa says:

    Mathew: to be clear, any kind of copying can be defended as a fair use. Parody gets special treatment; satire does not – it gets the same evaluation as any other kind of expression. (I think you realize this, but just wanted to be clear for others in the thread.)

    [And to be clear, as Seth said earlier, legal is not the same thing as right. Just because government won't stop you from doing something doesn't mean you should do it.]

  20. Shelley says:

    Seth, I wish you would write what you had planned. The latest update was just me, pointing out the, sadly, obvious. Giving attention where it’s not due.

    I removed it, not because of your comment, but because it’s time to stop rewarding people who abuse others. It’s definitely time, and past, to stop rewarding such out and out sexists.

  21. Kathy Sierra says:

    Shelley, there were more than a dozen photos and graphics (Photoshop charts, etc.) used on those sites — I’m not talking about just one. But yes, they *were* used to parody those of us who were targets, so under that definition, they were fair use. I’m trying to get your personal definition… that’s what I’m asking of YOU — if someone uses YOUR content in a way that’s about YOU, then it’s OK with you? Without any kind of permission or attribution?
    Shelley — you and others in your comments have brought up the meankids incident so many times I lost count — it’s an easy target as a point of reference. So far, this is the first/ONLY time I’ve mentioned it other than to answer something y’all have said here.

    Anyway, this is a question I’ve been thinking about (abuse of the word “parody”) and it sounds like you are making a valid distinction (which seems to be close to the legal definition) — that as long as YOU are the target, using your photos and art is acceptable use for you personally– no permission or attribution needed. I’m not sure I feel any differently; I’m just questioning as you did whether slapping the word “parody/satire/art” makes anything justifiable. Whether any one incident actually IS parody/satire/art is open to debate, and my comment is that it’s getting very difficult to draw the line.

  22. Shelley says:

    Then ask outside of that incident, or relate to the current discussion, Kathy. Contrary to your use of ‘always’, I’ve only brought it up when others have referenced it. To be honest, you’re not in my mind all that frequently, Kathy.

    As for using others material– I don’t necessarily fault people for doing so, but if the creators asks them to remove it, then yes, they should remove it. If the use is within fair use (there’s that topic again), and it’s in regards to an important public figure, such as a politician, than I would more supportive of the person being able to use the image.

    For entertainment though? Not really.

  23. I’m surprised that some people think it is clear fair use to use an entire work — a photograph — in a video. But getting into arcane copyright debates is too much work. I’d rather stick to the principle that not giving credit for photos lifted off Google Images is jerkwad behavior.

    And speaking of jerkwads, Michael Arrington really put the little woman in her place in that discussion on Mathew Ingram’s blog, didn’t he? Miss Denmark really missed out when she passed up the chance to become Mrs. Arrington.

  24. Shelley says:

    Rogers, it’s almost as bad as his new post. I did respond to his current writing–and its reduction of Lane Hartwell’s legitimate professional concerns to ‘hurt feelings’–but I pulled the link. I’m not going to give him any more attention.

    Or the people in his comments who suggest to ‘beat the bitch up’ for daring to stand up for her rights.

    Frankly, I am beginning to wonder how much Hartwell’s sex is really a factor in how mad people are at her. I didn’t believe her sex was an issue before, I do now.

  25. Ethan says:

    I’m surprised that some people think it is clear fair use to use an entire work — a photograph — in a video.

    And to follow on to this comment fragment, my understanding of Fair Use concerns the “heart” of the work. Lifting a sentence/paragraph from Burningbird as a supporting citation for something on another web site is Fair Use. Packaging the feed in another “wrapper” and giving the impression that the material is the work of Pirates Incorporated = copyright infringement (unless permitted by the content owner). I would concur that a photo, unaltered and redistributed constitutes the “heart” of the work, despite being used as part of a larger video montage (or whatever – I didn’t watch the video in question).

  26. jeneane says:

    You know what also sucks? Is when you DON’T use someone else’s image in parody or satire, but then somebody decides to use the mainstream media and Internet — not to mention word of mouth — to say that you did! Hey, that sucks major assage! And oh yeah, and it’s illegal!

  27. Sheila says:

    Parallel universe, or another way to react:

    At Terry Bisson’s site: THEY’RE MADE OUT OF MEAT.

    (From OMNI, April 1991. This story, which was a 1991 Nebula nominee, has been appearing around the internet lately without my name attached. Several people were kind enough to alert me, but the truth is I’m more flattered than offended. )

    And now this page has made its way to

  28. Some people are telling Lane Hartwell she should’ve reacted that way too, Sheila. One on TechCrunch wrote, “Unfortunately the photographer didn’t have the foresight to see that regardless if she was given credit, that she could have used the video to promote her work and receive possibly millions of hits and potentially hundreds or thousands of requests for work.”

    I’m not clear on how people using your work without any credit is going to help you market yourself.

  29. James says:

    Going back to the use of the DMCA, it seems some people have a instinctive dislike of any act based upon it. And while I don’t like the DRM provisions of the DMCA, the takedown part of it (OCILLA) is not that horrible. Yes, you should generally contact the other party directly first, but if that doesn’t work a takedown notice is a reasonable next step IMHO. See also the MPA infringing the GPL, not responding after more than a week, but acting after their ISP was sent a takedown notice. Copying software verbatim is a much clearer infringement (in case law and legislation) than copying a photograph, but since YouTube’s terms of use do say no use of photographs in slideshows without permission it seems to me that the takedown notice was reasonable in this case.

  30. This is an issue for poets, too: Wendy Cope had a piece in The Guardian about the unauthorized reproduction of her published work on the internet. She takes a harder line than I would, but it’s an issue. Personally, I would like to be asked permission & credited for my copyrighted work. At the very least, credited (with a link back to the original, or to the Amazon listing of my book, etc.) Seems like simple courtesy. I wrote more about this here and here.

  31. Shelley says:

    Thanks for adding the note about YouTube terms of service stating that every photo in a slidehow has to have permission from the copyright owner, or otherwise the slideshow will be pulled. It doesn’t get much more simple than that, does it?

    What puzzles me is the message being sent: Richter Scales, which took all these photos without permission, and without giving credit is the ‘good guy’ and the person exerting proper ownership of her work, is the ‘bad’ guy. Or in Arrington parlance, ‘bad girl’.

    So let’s show the kids that it’s OK to steal and plagiarize, as long as you create something that makes people laugh.

    Did I get it right?

    Joe, I agree: permission and credit. At a minimum, credit. I don’t know how anyone can excuse not giving credit. I think people are responding to the terms, rather than the event. We see ‘DMCA’ and automatically reject the person making this action. Yet this is the only legal action one can take, if the video creators won’t remove or alter the work.

  32. Don Park says:

    Urgh. This is like blind men arguing about sunset. I think it’s more fruitful to think about how to prevent incidents like this from happening.

  33. Shelley says:

    Equal parts email and courtesy.

  34. Pingback: Tragedy of the Commons: Lane Hartwell vs. Richter Scales | ::HorsePigCow:: marketing uncommon

  35. Why are people allowing Mike to get away with denigrating ip protection when his actions to kill parody website techcrush are so easy to find on google:

    This story just adds sexist and hypocrite to the humorless ip rights abuser already on his resume.

  36. Shelley says:

    Totally forgot that. Good call. I added this link in Arrington’s post, but didn’t attribute it to you. Didn’t know if you wanted your name dragged there. But you’ve left this same comment elsewhere, so am assuming you wouldn’t mind.

  37. Joe, I agree: permission and credit. At a minimum, credit. I don’t know how anyone can excuse not giving credit.

    How about this then, if it is a requirement to give credit what happens when it is not clear who owns the copyright? If you couldn’t give proper attribution then that piece of culture would be lost and unusable.

    This is the big difference for me between legal requirements and ethical requirements. Attribution should have been given ethically but the chilling effect of requiring it legally is not, to my mind anyway, worth the potential damage to culture creation.

    In the realm of fair use I think it is almost always better to err on the side of the new creator citing fair use, as anything else bears too much danger of stifling free speech and cultural ownership by the people

  38. Rogers, I haven’t dived into this to the depth you and Shelley and others have. I do like to pipe up with the chorus that the intention of copyright law was to encourage the creation of a public culture, to expose works to the public. The Web is certainly doing that.

    Back when, writers in the East were finding that their works were republished in the West verbatim, with only a new cover, under someone else’s name — complete with a cousin to swear he saw the thief laboring over the novel for years. Consequently, authors were publishing privately, passing their work hand to hand and not making them available to booksellers. (This is similar to what Shelley sees could happen to photos on the Web.) By sending a copy to Washington before publication, Congress intended to assure that writers could easily establish authorship and would go public again.

    Obviously, this works when there’s an object (a book) being sold.

    How this all applies digitally, where you can give it away and still have it all, is hammered out constantly now. I really did think my old 45s cost 99 cents because I was paying to own that object. Newspapers brag how many readers each sale represents — reuse — because their real business model is delivering eyeballs to advertisers.

    I’m not big on “shoulda” for anybody else (life is full of decisions and their cascading consequences playing out makes for the drama), but I figure anything I put on the Web becomes fair game, and reuse doesn’t imply that the site that uses it created it. (I don’t think it’s accurate to call failure to credit “plagiarism” unless the person who uses it leads others to believe they created it.)

    If I decided to insist that my photos be credited, I would not put them on a public site, or would at least watermark my online photos, as Lane is now considering doing, with my name and email address. Then reusers would have to ask me for a clean copy which I’d exchange for an attribution, and maybe mine wouldn’t be used, someone else’s would, and others who might have credited me won’t use it because they need it Right Now. (Spam blogs lose interest when a blog switches to a partial feed… but so do some readers. From another angle, it must drive celebrities nuts when photographers can publish and sell unflattering images of them simply because they ventured out into a public place, where everyone may be photographed without their permission.)

    At the same time, I agree that credits for (most of?) those photos could have scrolled at the end of the animation, and the extra effort to copy and keep together the photographers’ names as well as their photos would probably have avoided all this.

    We’re still all elbows and angles out here, creating a public culture on the Web. No other benefit (i.e. exposure) is implied. Nice when it happens, though.

    Of course, there can always be the line in the online resumé that says “this photo was scooped off Flickr and landed in the viral Web 2.0 Bubble video,” riding the tail of its popularity through the search engine results and establishing the link yourself.

    Terry Bisson is doing something like this to reconnect his name to his work before it floats completely away from him. I linked to his story in support of that. He’s acting on the problem in a simple, interesting way. I hope the story gets a whole new bunch of readers because of it. It was new to me.

    Finally, that gender bomb certainly stunk.

  39. “I do like to pipe up with the chorus that the intention of copyright law was to encourage the creation of a public culture, to expose works to the public. The Web is certainly doing that.”

    True, but the culture of sharing for mutual gain is competing with a culture of treating everything you find on the web as if it was public domain. The contempt for Lane Hartwell in that TechCrunch discussion is galling. I enjoy the remix culture, but if you don’t credit the originators of the source material, where’s the give in this whole give and take?

  40. In reply to Scott Parsons above: I agree with your point. But current copyright law, as I understand it, has a provision for “orphaned works,” that is, works whose author cannot be found after a good faith attempt to determine the copyright holder.

    As I wrote in my own discussion of this issue (linked above), we ought to be working to expand the public domain by limiting copyright lengths & renewals; then, within that public domain, we will need to behave ethically & fairly.

  41. jeneane says:

    Sheila, Rogers, excellent points. Thank you for the history lesson Sheila – I never really reflected on the genesis of copyright law in the U.S.

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  44. But current copyright law, as I understand it, has a provision for “orphaned works,” that is, works whose author cannot be found after a good faith attempt to determine the copyright holder.

    joseph duemer

    Sadly this is actually seen as one of the major problems with current copyright laws, see…
    American Library Association on orphan works

    There are some working on the problem and suggesting solutions, but nothing concrete yet. I sincerely agree that current copyright laws do much to constrict real fair use (not the legal version) and that constriction is damaging because it prevents the development of a sharing culture which is adapted to modern usage patterns. I certainly do not have the answer but I believe that if people are continually told that common usage patterns are theft (like making your friend a mix CD) then they will be less sensitive to other cases where people call certain usages theft. Incidentally this is why I bristled when I read Shelley’s lamentation that the usage in this case will lead us into a “den of thieves.”