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Monday, January 7, 2008

Fresh from controversy, Lane Hartwell to head up Tuesday night panel discussion and ask the immortal question: what's protecting artists on the web?

Posted By on Mon, Jan 7, 2008 at 3:12 PM


Self-portrait of photographer Lane Hartwell

By Benjamin Wachs

Rearrange the letters in “World Wide Web” and you’ll somehow get “plagiarism.” There’s 17 trillion web pages and virtually no original content worth the time it takes to load. The result is that anyone who dares say or do something worth repeating will probably be the last one to make money off it. Who’s going to pay for something that everybody’s already stealing for free?

The music industry is - reluctantly - finding a way; movies and television are following, writer’s strike and all. Newspapers are struggling. But what about the fine arts, images of which are probably among the most routinely stolen on the web? Is that fixable? Or does our need for constant free media stimulation mean that people are just going to have to give up on ever being paid for what used to be known as “art” and is now called “content?”

Despite her recent thrashing by Netizen public opinion, photographer Lane Hartwell still says the system can work for both artists and ever hungry consumers.

If you pay your bills by producing what’s euphemistically known as “intellectual property” – the kind of property easiest to steal and hardest to identify – you’ve probably learned who Hartwell is and why she’s rapidly becoming the poster child of the creative class by turning against its excesses.

If not, a summary is below for your education. The bottom line, though, is that after forcing an a capella group to take down a popular video on YouTube because they used one of her photos without credit, Hartwell has become a hero to many photographers and a punching bag for the kind of people who think that photographers get paid by magical fairies who leave money under their pillows if people like the pictures they took that day.

Anonymous posters criticizing her for being a professional photographer instead of a “community artist”; for taking her work seriously; and even for being a woman (for the record, Hartwell frequently donates her time and talents to community groups, and is female). One person called her a “douche nigger” – whatever that is.

But Hartwell thinks the discussion can be useful – and that the time is ripe for finding new ways to keep the content flowing while paying the artists.

Tuesday night, at a Media Web Meet Up that’s free and open to the public, she’ll discuss her experience and present ideas for the next frontier in copyright management.

Some of them are tech issues that sites like Flickr could employ.

“Flickr is viewed as a place to get free photography,” she said. “The copyright information is not large enough on the photo page to really warn anyone. They also encourage people to use Creative Commons Licenses with no real education about the implications of that. I think that's irresponsible. They make CC sound like a cool fun thing to do when in fact it's a legal contract you are entering. Flickr could stand up for it's photographers and community and start putting changes in place to help protect them. Otherwise people will continue to take their work to sites that offer more control, or not share on flickr in the first place.”

Other fixes involve more education for web users – to the extent that it’s possible to educate web users about anything.

Tara Hunt, who organizes the SF Media Web Meet Up, said producers of content need to be more explicit too – some post content to the web for notoriety, some for fun, some for money and some because they think people actually care about what they have to say (I’m guilty of all of the above). But right now it’s often impossible to tell who’s posting for what reasons – and without knowing what the creator wants in exchange for their work it’s easy to end up doing the wrong thing.

These ideas alone may not solve the problem of keeping great original content easy to access and profitable at once – but it’s better to have the conversation now, while there are still talented artists online.

Unless we do, we’re dangerously close to the most accessible communications medium of all time driving artists even deeper underground.

The Event:

Photographers Lane Hartwell and Jim Goldstein will join Electronic Freedom Foundation attorney Jason Schultz on a panel to discuss the future of creative content on the World Wide Web.

Tuesday, Jan. 8

6 – 8 p.m.

Neue Songbird Nest

585 Howard Street between 1st and 2nd

San Francisco, California 94107

The story of Lane Hartwell and The Richter Scales

The Richter Scales, a Bay Area collection of “Gentlemen Songsters” (their words, not mine) produced an a capella version of Billy Joel’s “We Didn’t Start the Fire” called “Here Comes Another Bubble” and posted a video of it on YouTube, accompanied by mildly amusing text and pictures of tech leaders.

Pastiche, of course, is the lowest form of creativity, taking as it does the high quality work of others and chewing it up to present something of lesser value. Still, in the cultural desert of the web it shot up to #1 on YouTube in early December and earned the Gentlemen Songsters name recognition and a million website hits. By comparison, only about 250,000 people marched on Washington with Martin Luther King, which proves beyond a doubt that the Richter Scales had created a work of profound cultural importance. I’m sure you’ll remember it next year.

However, one of the photos in the video – a picture of Valleywag’s Owen Thomas – had been taken by San Francisco photographer Lane Hartwell for a magazine shoot, without either asking permission or giving her credit in the video. Since Hartwell specifically labels her work “All Rights Reserved” she was unreservedly abashed, contacted the Richter Scales, and asked them to compensate her or take the photo down.

In response, the Richter Scales consulted an attorney who told them that the use of Hartwell’s photo was a parody and therefore legitimate and that neither payment nor credit was needed. They did add a credit to the “YouTube” statement about the video, but refused to change the video itself … which would have required taking it down from YouTube and losing their hit count and comments.

So Hartwell consulted her own lawyer, filed a Digital Millennium Copyright Act complaint, and had the video taken down anyway. The Richter Scales then created a version “1.1” of the video (tech speak is so poetic) without the Owen Thomas photo and with a complete credit list -zipping by at 200 mph - at the end. The two sides are still sniping about exactly what happened and who was right. It may even end up in court, though it’s doubtful anyone really has the stomach to pursue it that far. So far Hartwell has not, despite persistent internet rumors to the contrary, actually filed suit against The Richter Scales.

For the record, an intellectual property lawyer I consulted said that if it did go to court, Hartwell would win 9 times out of 10.

"The parody argument is not so terrible that it would get laughed out of court," I was told, "but it's not a great argument. A parody makes fun of its subject matter - it doesn't use somebody else's copyrighted materials to make fun of something else entirely." Since the Richter Scales weren't making fun of Lane Hartwell's picture, or Owen Thomas, or even Hartwell herself - just the tech culture in general - they likely fail that test. "The fact that you are using someone's material to make fun of something else isn't a defense. It's not like using the image of Gandalf to make fun of The Lord of the Rings movie."

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Benjamin Wachs


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