December 20, 2007

Here Comes Another Takedown

Filed under: law — wseltzer @ 6:24 pm

Earlier this month, comedy group The Richter Scales released a funny music video, “Here Comes Another Bubble.” The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel’s “We Didn’t Start the Fire,” lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week’s top-rated video.

Then, it was removed from YouTube, “due to a copyright claim by a third party.”

Photographer Lane Hartwell says she objected to use of her photograph of Valleywag’s Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the “third party” sender of the complaint.)

Now, the video is back, in a revised version that omits Hartwell’s photograph.

To me, the original situation seems to lie near the blurry edge of copyright’s fair use exception. The Richter Scales would argue that their use was “transformative,” using the photograph to comment on the bubbly scene the photographer chose to depict; commentators on Silicon Valley foibles might be unable to get permission for photos used to skewer the establishment. Hartwell, by contrast, tells us that “Photography is my livelihood. It’s how I pay my bills. I’m not treating the band any differently than any other group that uses my work without my permission.” She sells or licenses her work to magazines and others who want to use photo illustrations, and sees no reason to treat the Richter Scales differently.

Is the momentary use of Hartwell’s photo an unfair substitute for something she should have had the right to license, or a fair use the law should license irrespective of the copyright holder’s wishes? I’d be inclined to find the use fair, as transformative commentary, but I couldn’t guarantee that a court would agree with me.

The DMCA harbors no such ambiguity, however. The moment someone claims an infringement, the law encourages the service provider to act “expeditiously” to remove the offending material. The strict penalties in copyright’s “property rule” nature support that response: One who can prove copyright infringement can often get both an injunction and stiff statutory damages. Acting individually, the parties might stand firm or be pushed by the costs of legal uncertainty to settle their differences, but the service provider in the middle changes the calculus.

The intermediary service provider rarely wants to risk outsize damages or get into negotiations with copyright claimants and small content-posters, and so tends to take down rather than face even a remote chance of liability. If, on the other hand, intermediaries’ secondary liability were limited as it is for defamation, content creators would be freer to make and defend fair use arguments. A liability rule or compulsory license, enforcing rights through payment rather than removal, could leave these items in the public view.

Absent copyright reform, we’re stuck with the likelihood that clever montages — which depend on pulling content from many sources — get popped even more quickly than tech bubbles.

8 Comments »

  1. Something about this seemed familiar, and eventually I recalled Joseph Cornell. His work is currently on display at the San Fransisco MOMA (the link I supplied above). He made collages and boxes using “found art”. I’m sure that under a strict interpretation of today’s copyright laws, most of his work would run into the same issues you describe here. This is a great example of the type of transformation work that long copy rights and over-expansive derived works can kill.

    Comment by Michael — December 21, 2007 @ 1:08 pm

  2. Good video - could see it getting banned though - just not this way!

    Comment by www.results-videos-news.com — December 31, 2007 @ 7:08 am

  3. Another sad report about creative independent work being squashed on YouTube… I guess they must think its cheaper to play cat and mouse than to stand up for the users who are providing them with the content that is making them rich.

    Comment by Alive Worldwide — January 1, 2008 @ 4:36 pm

  4. [...] http://wendy.seltzer.org/blog/archives/2007/12/20/here-comes-another-takedown.html [...]

    Pingback by More Comment Work… « BlogAnon — January 8, 2008 @ 6:58 pm

  5. this is why i think there is always going to be a place in the world for main stream media (not that i am saying they don’t make mistakes) reporters have to answer to there editors bloggers don’t have to answer to anyone

    why remove all you photos from flickr (or make them private thats a bit of an over reaction don’t you think?)

    Comment by plastik — February 19, 2008 @ 3:37 am

  6. I think the important thing to remember here is that the photo appears to have been available to license, but the Richter Scales chose to use it for free (and to replace it rather than pay a fee). Publishers, documentary filmmakers and other creators of works that include the work of others have long had to search for public domain photos or seek permission of copyright holders. While certainly there is some room to argue fair use, it seems fairly weak in this example.

    Comment by David — March 19, 2008 @ 9:42 pm

  7. omething about this seemed familiar, and eventually I recalled Joseph Cornell. His work is currently on display at the San Fransisco MOMA (the link I supplied above). He made collages and boxes using “found art”. I’m sure that under a strict interpretation of today’s copyright laws, most of his work would run into the same issues you describe here. This is a great example of the type of transformation work that long copy rights and over-expansive derived works can kill.

    Comment by otogaz — April 3, 2008 @ 8:12 am

  8. this is why i think there is always going to be a place in the world for main stream media (not that i am saying they don’t make mistakes) reporters have to answer to there editors bloggers don’t have to answer to anyone

    why remove all you photos from flickr (or make them private thats a bit of an over reaction don’t you think?)

    Comment by kop — October 19, 2008 @ 4:12 am

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