Did you see it?

Oh… You probably missed it…

Well whether or not you saw it is irrelevant. It’s causing a huge uproar in the blogosphere right now. Photographer Lane Hartwell is cheesed off because someone took a photo she posted to her flickr stream and put it into a parody video about the web. The band, not wanting to incur the wrath of a hyperbolic photographer removed the picture that appeared for less than one second, credited every other photographer whose image they used, and then reposted the video.

Not good enough for Ms. Hartwell, who, in the interest of “sticking it to the man” and getting paid is now invoicing the band for the use of her image.

As the Richter Scales stated in their blog, the video that used my image - without my permission - was viewed just under one million times on YouTube. In the end, 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. I question whether they would have acted differently if they’d been contacted by Billy Joel’s management or the stock photo agency Getty Images.

I continue to maintain that individuals must be fairly compensated for their work. The Richter Scales have chosen another path. I believe the discussion generated as a result of this issue is healthy, necessary and will be ongoing. People who post their digital photos online should be able to do so secure in knowing that their imagery will not be used for commercial purposes without their permission.

I will be sending the band an invoice for their use of my image in the first version of the video. I hope they pay it as I’ll use the money to pay my lawyer and donate the rest to www.kids-with-cameras.org. Kids with Cameras is a non-profit organization that teaches the art of photography to marginalized children in communities around the world. This was the offer I proposed to the Richter Scales that they chose to disregard.

Individuals must be fairly compensated for their work. I would not argue such a thing, ever. That being said, however, individuals must also understand something called fair use.

The crux of Ms. Hartwell’s argument is that because her photo was used from her flickr stream, where her license says “All Rights Reserved” she has a right to collect payment for each use of the photo. She contends that because the use was commercial, she has a right to be paid. The only problem with that is that a parody video of a song isn’t exactly commercial use, is it? I could understand her point if the Richter Scales, the band in question, were selling the song, but they aren’t. As it is, she took the pictures at an event with the intent of using them for commercial purposes and you can bet she didn’t get model releases for Owen Thomas and all the other people she took pictures of that night, so isn’t it really a wash anyway?

Techcrunch, as always, is right on the money:

There have been arguments on both sides about whether the use of these images in the video would fall under the fair use doctrine of copyright law. Ultimately, only a court can decide. My co-editor Michael, who has a law degree from Stanford but is by no means a copyright expert, argues that it most certainly is fair use. Hartwell (and her lawyer) argue that it is not, principally because the image was used in its entirety without permission and the group who put the video up (the Richter Scales) stands to benefit from sales of their CD and concerts since there is a link to their site on their YouTube page.

Never mind that the Richter Scales is a not-for-profit a capella group that sold a total of eight CDs the week the original video was up. Under copyright law, it doesn’t matter. Damages are based on how much Hartwell could have sold those pictures for, and since she is a professional photographer, that would have been a lot. Unless, of course, all the publicity around the image has helped to drum up more business for Hartwell.

Like I say, you can argue both ways. Is the work transformative? Yes, the image takes on a new context within the video. Is it covered under parody if the video is not making fun of Hartwell’s image, but rather using it to make fun of Silicon Valley? Yes, because Hartwell as a Silicon Valley party photographer and the image in question of Valleywag editor Owen Thomas are both part of the very culture being parodied. (Thomas also happens to hail from Business 2.0—Time Inc. was right, that magazine was nothing but trouble). But Richter Scales took the entire image, and that is not allowed! Yes, but how do you take an “excerpt” from a photograph, unless you crop it? Anyway, a court might decide that the brief flash of Hartwell’s image in the original work constitutes an “incidental reproduction.” (And, no, I am not a lawyer).

Lane Hartwell should do two things:

1. Stop posting pictures on public sites and making them publicly available if you don’t want people using them in a fair use situation, or in more nefarious cases commercially (something I completely agree on). If you’re worried about your commissioned work being used elsewhere, don’t post commissioned work you do for others on the web. It’s not right, but it is reality that anything on the web is “stealable,” and while the Richter Scales didn’t really do anything wrong here, someone else might not be as pure of motive.

2. Apologize, call it a misunderstanding, and forget the whole “I’m invoicing them” thing. It’s utterly ridiculous and only serves to make Hartwell look vindictive and childish. As it is, a large majority of comments I’ve seen on the subject think she’s wrong altogether, so it may not be a bad idea to drop this thing and let the chips fall where they may. As it is now, she’s only inflaming the situation leading me to believe that despite her protests, she’s enjoying the fact that suddenly lots of people know who she is.

Kudos to the Richter Scales for responding so quickly and dropping the picture out of their video altogether and shame on Lane Hartwell for keeping this childish and idiotic crusade to punish a small-time band going.