Q&A: Going to the mat for photo copyrights

It wasn't Lane Hartwell's first heated exchange over a photo copyright issue, but a tussle involving a witty YouTube video probably was the one with the highest profile for the professional photographer.

Last week, a not-for-profit San Francisco singing group called the Richter Scales posted a Web 2.0-mocking video, Here Comes Another Bubble, set to the tune of Billy Joel's We Didn't Start the Fire. One of the many photos that flashed by in the video was one Hartwell took of Valleywag's Owen Thomas.

The problem: Although Hartwell had posted the image publicly at her Flickr account, she had kept copyright, labeling it as "all rights reserved," and the Richter Scales didn't license its use. When Hartwell found out about it, she took action, and YouTube pulled the video down. Hartwell sought payment for the photo's use, but Tuesday night, the Richter Scales posted an updated version without the Thomas photo. Hartwell now says she'll send an invoice to the band for the times it was viewed.

Hartwell, who turned pro three years ago and now shoots for clients including San Francisco magazine, Wired News, and Valleywag, took fairly aggressive measures, stepping on some toes on the way. But in her view as a professional photographer, protecting copyright is paramount, particularly in a day and age when digital photography and the Internet make copying photos very easy.

Here comes another trouble: even after the Richter Scales posted a list of photo credits with the updated video, another photographer, Ramona Rosales, apparently isn't happy. She took the photo of TechCrunch chief Michael Arrington that appeared in Newsweek that's also in the video.

One issue at the heart of the matter is the doctrine of "fair use," which permits free use of copyrighted materials for purposes including commentary, criticism, news, and research. Opinions differ on whether the Richter Scales' use qualifies--fellow CNET blogger Gordon Haff has a reasonable wrap-up--but there's no question that digital photography and the Internet has focused more attention on the gray area between obviously permissible and obviously forbidden uses.

Indeed, I first got in touch with Hartwell after my employer, CNET News.com, became one of her earlier targets. We had published a photo of Yahoo CEO Jerry Yang taken by Hartwell's fellow photographer, Mitchell Aidelbaum. CNET had obtained permission directly to use the photo earlier, when it also had been available under a Creative Commons license that permitted others to use it as long as credit was included. But we used the image again later in a small thumbnail size without giving credit.

(I asked the editor in charge of the situation what our current policy is, and he told me News.com avoids using photos licensed under Creative Commons in thumbnail form. Some of the debate is recorded here at Digg, but Hartwell has since made private the Flickr photo where the debate took place.)

After the Richter Scales fracas, I thought it would be interesting to hear from someone who has chosen to draw a line in the sand. Here's an edited version of our chat.

CNET News.com: You seem to have a passion for the issue of copyright-infringing copying of photos. Has this become something of a crusade for you beyond just protecting your own rights?
My only intention going into this was to resolve the issue regarding the use of my image in the video. It's what I do every time someone uses my imagery without permission. I never expected the response it's generated, but I think the discussion is healthy and necessary.

How did you find your Owen Thomas photo was in the Richter Scales' video?
A friend told me. It's usually friends that tip me off when they stumble across my images on Web sites and blogs.

How did you feel when you saw the image?
While I thought the video was funny, my first thought about seeing my image was, "How come I was not asked for permission?" I also recognized another photographer's work in there. I can't say I was surprised; it was more a feeling of "Here we go again."

And how did you approach them about the issue?
I wrote them an e-mail and asked them to explain what my all-rights-reserved image was doing in their video. I explained that I am a professional, that the image is copyrighted, and that I license my work. I told him I had not been contacted to use the image.

What kind of response did you get from the Richter Scales? Did they or you contact YouTube or other sites where the video was posted?
I'd really rather not go into all the details of the negotiations, but I did file the takedown notice on the advice of my lawyer when it became apparent that the members of the band decided to not take any action regarding my requests related to the use of my photograph.

Are you concerned that your forceful stance might cause some kind of backlash?
I was concerned at first, but my friends, my clients, and total strangers have thanked me for standing up for what I believe is right.

Do think you might have made more progress in the long run, both with your career or in copyright education, with a more forgiving approach to the Richter Scales? You seem to have made a vocal opponent rather than a potential ally in your cause.
I had been in e-mail communication with three different members of the band for three days before making the decision to send the takedown notice, after consulting my lawyer. After three days of exchanges, one of the band members announced they wanted to take several days for a "cooling-off period" and that we could resume negotiations then. That was unacceptable to me. The video was still online and they'd made none of the changes I'd requested. I really wasn't left with much of a choice.

On the one hand, with digital photography and the Internet, it's easier for a photographer to publish on the Net and reach a broad audience. On the other, the same technology makes copying easier and more common. Would you rather be a photographer now or in the pre-Internet, pre-digital era?
I love digital! I honestly think there are pluses and minuses to any advance in technology and I'd like to believe I approach things looking for benefits while knowing I'll probably have to deal with some of the downsides. Shooting digitally allows me to turn around client projects in hours instead of days. It's made my work visible to more people than previously possible. The downside is that I've had to deal with people who feel they can use my work without getting permission. One the whole, it's great. But dealing with infringers still takes up more time that I wish it did.

On about how many occasions have you had to deal with copyright infringement issues with your photos?
It's been happening a lot lately. In the past two weeks I have had five separate cases of it. I would say generally a few times a month. And mind you, these are ones that I have found out about; I'm sure there are far more. There are currently three sites using my work right now, uncredited and unauthorized. They all have advertising on the site. I will be sending them e-mails soon.

How do you think Flickr and the Web in general affected photo-copying issues?
I've spoken with countless photographers who express frustration that many people feel that anything found on the Internet should be freely available for their use. I quit my day job to be a full-time photographer. It's how I pay my bills. I can imagine how these people would feel if they were expected to work for free because other people were taking the things they made without paying for them. I've donated work to charitable organizations, and I've traded services for my photography. I can't, however, just stand by and let anyone who wants to use my work without being fairly compensated for it.

Do you think the Creative Commons licenses are a good idea?
In theory, I think it's great, but in practice, it's got a ways to go. If people don't respect something marked all rights reserved, and we are having this kind of confusion over a copyrighted image, are people going to respect the terms of CC licensing? Although I personally don't employ CC, I know many people who use CC licenses for their work and have been ripped off anyhow, as in those who take don't bother to follow the terms of the license, don't credit or link back. I also think it's become a way for large, for-profit corporations to find and use free content instead of hiring professionals. Was CC designed for Virgin to make advertising with Flickr images, or was it designed for the average person to use an image in a presentation or in some creative way without having to pay a small fortune to do so? Lawrence Lessig himself says: "A culture without property, or in which creators can't get paid, is anarchy, not freedom." I don't think a free-for-all is the intention of CC.

What do you think of technical measures to address the issue--watermarking, for example?
I think watermarks are a great idea, but it does take some time to do. Sites like Flickr need to employ an automatic watermarking system. The site I am moving my work to, Photoshelter, allows me to set that all up in advance and I never have to deal with it again. It's applied to every photo.

How much did you bill the Richter Scales, if I might ask?
They haven't received the invoice yet. I'd prefer to wait till after it arrives. I can tell you that I used a professional computer program called Fotoquote and calculated the invoice based on usage, the market where the photograph is to be used and various other factors, which are the typical parameters photographers use when pricing an image.

Earlier, you said on your blog that when you turned pro, you decided to follow the advice of another photographer who said never to shoot anything again for free--even friends' parties. Is that a little extreme, or is it really that serious a slippery slope?
Her point was this is my only source of income now. That my friends and community would be the first people to understand that and want me to succeed, and many friends have since commissioned me to do work. The bottom line is, I have to make sure I am able to make a living. It's called survival. Having said that, I have always been, and will continue to be, generous with my photography. But it's my choice to make...I should not be forced into it.

What have you learned from this particular episode? Is there a moral to this story for you, for the Richter Scales, or for the public at large?
I certainly can't speak for the band. They've made their choices and will have to live with them. I think if I hadn't raised the issue, sooner or later another photographer would have. I'm disappointed with some of the personal insults I've received from people who don't know me, but they've been more than offset by the support I've gotten from the photographic and tech communities. This issue isn't going to go away. I think this is just the start of the discussion. I wish I could tell you there's some great moral to this story, but really, I'm just going to keep doing what I'm doing and part of that is protecting the use of my imagery online.