Ever have one of those dreams that your standing in the middle of courtroom defending the copyright of one of your images when you look down and realize that your naked?

You will.

There is an unprecedented number of copyright challenges facing photographers occurring on the internet. Images are getting lifted from services like Flickr and photographers web sites at an alarming rate. The hijackers are using the images to illustrate blog entries and YouTube videos. The harsh reality for us shooters is, that it may be perfectly legal.

Mine, mine, mine, mine.

I could have never imagined that my diligence in protecting my images against unauthorized use can, in some instances, be perceived as an assault the First Amendment right to Freedom of Speech. It has been dormant scenario in our industry that has become incredibly active in the past year for one reason. The internet.

The Fair Use Exception for the Copyright Law was created as balance for the First Amendment Right of Freedom of Speech. Fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

If the above definition seems vague to you, your instincts are accurate. It is vague. The lawmakers that created the fair use exception did not want to limit the definition of fair use. They wanted the meaning to be expansive and open to interpretation. Just like the First Amendment protection of free speech. This strategy encourages that each fair use defense against copyright infringement be presented to a legal entity for interpretation. An action that costs the defendant (the photographer) legal expenses.

Until I had finished the research for this article I was entrenched in the “if I shoot it, it’s mine mine mine” camp. But now, I’ve come to understand that this attitude is contrary to the functioning of a democracy. If I want to protect my work from being appropriated for endeavors covered under the fair use exception of the copyright law, I had better keep the work off the internet or, more appropriately, out of public access.

The case of Lane Hartwell and the Richter Scales.

In Northern California an a cappella group named the Richter Scales, a group of guys who sing as a hobby, created a video called “Here comes another bubble.” It’s a parody of the current Silicon Valley dot com bubble put to the music of Billy Joel’s We Didn’t Start the Fire. The video was released on YouTube and quickly gained a massive number of viewers.

Part of the video features a montage of photos of some of the current crop of players of current Silicon Valley bubble. An image of Owen Thomas, the managing editor of the Silicon Valley tech gossip blog Valleywag, shot by photographer Lane Hartwell appeared in the video without her permission. She reacted by notifying the Richter Scales via email that they were using her image illegally.

The Richter Scales responded that they wanted to arrange a phone call to discuss the issue. Miss Hartwell asked that they continue the conversation via email so that there would be a written record of the discussion. (All you photographers take note of that last sentence.) The following day The Richter Scales sent Miss Hartwell an email explaining that they had spoken to a lawyer and their use of her image came under the fair use exception to the copyright law.

Understandably miffed that the response wasn’t more in the vein of “what can we do to resolve the situation”, Miss Hartwell sought he advice of a lawyer. He suggested that she take advantage of the DMCA (Digital Millennium Copyright Act) take down request on YouTube. Which she did. The exceptionally funny and well produced video was removed from YouTube.

That’s when the shit hit the fan.

Tech Crunch, a hugely popular blog that reports about technology industry, quickly lashed out at Miss Hartwell with a blog post entitled “Misunderstanding Copyright Law And Ruining Everyone’s Fun”. The tenor of the blog post written by Michael Arrington was that Miss Hartwell did not have a case against The Richter Scales because the use of her photo in their video came under the Fair Use Exception of the copyright law. And, Miss Hartwell should show a little leniency towards her fellow artists.

The post rapidly received a hail storm of comments, some for Miss Hartwell and some against. And some were incredibly caustic and misogynistic resulting in a mob rule mentality.

The story spread around the internet like a wildfire during a drought. Not surprisingly the facts of the story were quickly distorted. Within days, Miss Hartwell’s name was famous or notorious depending upon with which side of the argument you aligned yourself.

The currency of the web.

In a followup to the original Tech Crunch post, a piece entitled “Fair Use Vs. Free Speech in the Internet Age: The Lane Hartwell Problem” writer Erick Schonfeld makes the argument that “the way creative people like Lane Hartwell get compensated for use of their work must evolve” to consider the way that people on web now express themselves using video, images and other rich media in mash up format. Forms of expression that are protected by Freedom of Speech.

Mr. Schonfeld continues that photographers should consider not charging for the use of our work on the internet at all, but rather consider the currency of the internet which is the link. He contends that “Links drive traffic, which would help each photographer find more clients and even sell more images on their own sites if they so choose.”

Kara Swisher, who is a technology writer for the Wall Street Journal and Boomtown, a column that appears on one of the most highly regarded blogs on the internet, All Things Digital, maintains that photographers should look at the grabbing of their work as vehicles for exposure. Her perspective is that folks like the Richter Scales are not inherently malicious, but are careless as they pursue distributing their art on the internet. She also believes that there is not going to be a lot of money to be made in trying to dole out usage licenses to individuals or groups like the Richter Scales who are just adding their creations to the internet collective.

Yeah, but it’s still mine.

I agree with Miss Swisher. There is never going to be any money in trying to license your images to people that are creating non-commercial vignettes of expression to upload to the internet. I also agree that there is value in attribution, and getting more traffic to your web site. This will raise your ranking in Google thus resulting in more notoriety and a greater online presence for your name. It is basically the online equivalent of doing a magazine cover for very little money to boost your street credibility.

The major exception is that when you’re approached by a magazine to do a low budget cover you have the choice of declining. A choice that is not available if someone heists your image without your knowledge. Unless you’re prone to spending long hours scouring the world wide web for your work there’s really no way to for you to personally track, if and how, your images are being used without your permission.

It’s kind of like having your own digital bloodhound.
Attributor is a Silicon Valley company that tracks images for companies like The Associated Press, Conde Naste and Reuters. They have technology that creates a digital fingerprint of an image and then tracks that image wherever it shows up on the web.

If a photograph is found published without permission, Attributor clients can initiate one of three responses or actions;

- Offer a license for usage.

- Send a removal request. They will not only send a DMCA notice to the host of the image, but will also contact search engines to remove the photo from their index and also the ad networks so they no longer place ads on the page

- Send a link request. Links are the backbone of your search ranking for the major Search Engines.

These actions offer photographers the necessary tools to control those images that they choose to publish to the internet. It is a significant step to navigating the new digital economy that is partially supplanting the print economy that we’ve worked in since the inception of photography as a profession.

Attributor is currently in the beta stage of releasing a product for individual photographers. It is a service that I’m going to employ for my own images as soon as it’s available.

The real reality.

If your wondering what happened to the old way of managing the usage rights of your photographs, it was never part of the DNA of the internet. The internet was born out of a need for the US Government to communicate with educational institutions over a network that could survive a nuclear attack by virtue of the fact that it was inherently decentralized. A feature that allowed information traveling on the net to automatically reroute itself around a decimated access point.

The extraordinarily rapid evolution of what we now know as the internet came from a foundation of very smart people working in an open, collaborative spirit in which original ideas and creations were shared freely. The commercial component of the internet came years later.

Even though the altruistic and well intentioned open and collaborative spirit of the internet has also manifested in an enormous amount of copyright violations, there is no way that we as an industry are going to step in and reeducate billions of internet users into adopting a new attitude.

Personally I wouldn’t want to. It would devastate the spirit of sharing that has opened all of our eyes to new worlds of information.

That said, as a photographer you must protect the rights of your work. There is a world of difference between a commercial entity realizing a financial or public relations benefit from your photography, versus a blog using your image to make a point. The former requires a non-forgiving attitude and financial recompense, the latter, an attribution and link to your web site.

Then there’s all the situations in between. For example, if someone uses your artistic nude to illustrate a blog post about genital herpes, that is an association that will dilute the artistic perception of your work. One that would require a removal notice.

Surviving the internet through proactive behavior.

We are going to have to become incredibly pro-active about the value of our work, and we are going to have to become incredibly proactive about monitoring its existence on the internet. The recording industry made an enormous mistake in suing everybody based on a diminishing paradigm. We can not make the same mistake.

Understanding the value of your work in the environment that exists, and then maximizing that value to your benefit is going to be the most intelligent way to move forward in the new age. Give nothing away for free, just realize that not all compensation will come in the form of cash.

So what about Lane Hartwell and the video?

I’ll admit it. When I first heard about the Lane Hartwell story, I was not on her side. I thought that if that happened to me, I’d go for the some sort of PR angle to bring some notice me and my work. I became even more entrenched in my opinion the more I read about the story.

I interviewed a representative from the Richter Scales and I interviewed Miss Hartwell. Both are exceedingly nice people, although, understandably, the Richter Scales were much more reticent about the issue.

After wading through all the opinions and blog posts I was shocked to find out how much misinformation was being circulated. But one fact that emerged as true struck me. The Richter Scales gave attribution to Billy Joel for his song, but neglected to give attribution to Miss Hartwell and the other photographers. That indicates at least an awareness about copyright and attribution.

Ultimately, Miss Hartwell’s image of Owen Thomas was replaced by an image Kara Swisher. The Boomtown writer who had, by a significant margin, the most accurate reporting about the story. Version two of the video had attribution for every single photograph. As to the legal ramifications it appears that cooler heads have prevailed and the legal dogs have been called into the house.

I feel that Miss Hartwell over reacted, and the Richter Scales were negligent in assuming that Billy Joel was the only artist worthy of attribution. If you want to argue that the Richter Scales knew they would benefit from video, I disagree. There are millions of amateur videos on YouTube. Many of them bad. A group like the Richter Scales would never have any advance knowledge of the scope of the popularity of their project. That is what makes the internet so great, you never know what’s going to catch on.

However, Miss Hartwell’s courageous actions, amidst a torrent of excoriating and sometimes sexist opinions of her, illuminated an issue that the photography industry is at a loss to understand. For her part in starting a dialog that may be the catalyst for the photography industries future on the internet, she has my sincerest respect.