These are topics that podcasters, indie video publishers and bloggers continually struggle with. A recent example is the controversy over the Richter Scalesunauthorized use of Lane Hartwell’s photos in a video for one of their songs.
The Richter Scales ultimately reworked their video to eliminate the unauthorized photo and to provide attribution to other photographers whose work they had used. Unfortunately, they were still stuck with an invoice from a Hartwell.
Five Ways To Minimize Your Risk Of Copyright Liability
To avoid this sort of problem, the Citizen Media Law Project recommends five things you can do to minimize your risk of copyright liability:
Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
Add something new or beneficial (don’t just copy it — improve it!);
If your source is nonfiction, limit your copying to the facts and data; and
Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.
Here’s CMLP’s full take on copyright and fair use in new media:
There’s been a lot of controversy in the last year over the use and reuse of coyrighted content in videos published at sites like YouTube. A new study on copyright and creativity from the Center and American University’s Washington College of Law may help clear things up.
The study (pdf), Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, shows that many uses of copyrighted material in today’s online videos are eligible for fair use consideration.
Nine Types Of Fair Us In Online Videos:
satire
parody
negative or critical commentary
positive commentary
discussion-triggers
illustration
diaries
archiving and
pastiche or collage (remixes and mashups)
Fair Use And Internet Video
Fair use is the part of copyright law that lets you, in some situations, to quote copyrighted material without asking permission or paying the owners. According to court precedents, fair use should be “transformative” - adding value to the original work and using it for a purpose different from the original.
Here’s an example:
When makers mash up several works — say, The Ten Commandments , Ben-Hur and 10 Things I Hate about You to make Ten Things I Hate about Commandments (above) — they aren’t necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.
This type of fair use mashup and others is threatened by industry practices that are being introduced to control piracy. While content creators have a legitimate right to protect themselves from getting ripped off, that shouldn’t be at the expense of fair use.
Here are examples of each of the 9 fair use ways to reuse online video:
Portable media player manufactuer Neuros Technology has created the Unlocked Media brand to create a consumer friendly trademark out of the abstract idea of “DRM Free” media.
The concept behind the Unlocked Media trademark is that it be made available for free to any entity that uses media using open standard technology which is available to all on a non-discriminatory basis. Ultimately, Neuros is looking for an independent third party to administer and manage this mark.
“The Unlocked Media definition was chosen very deliberately to stand for a consumer benefit. The point of this mark is not to make a political statement, but to promote the fact that unlike DRM’d media, Unlocked Media can be played and stored virtually anywhere” said Neuros Outside Counsel Andrew Gray. “As an example, although controversial, we included patented technologies in the definition because the mark is intended to mean compatibility with existing devices like the iPhone.”
The controversy over the Richter Scales’ Here Comes Another Bubble appears to be drawing to a close.
The video was taken down from YouTube after photographer Lane Hartwell objected to the unauthorized use of one of her photos in the video. This has led to a great deal of debate over the role of copyright and fair use in Internet videos.
The group has released an updated version of the video that removes Hartwell’s image and gives proper credit for the photos that were used:
We’d like to be able to say that the controversy has ended on a happy note, but it hasn’t.
The re-edited video is still lame and it’s had the viral juice squeezed out of it.
The Richter Scales are unrepentant, taking the opportunity of the updated release to slag on Hartwell.
Hartwell comes across as spiteful in her response. “I will be sending the band an invoice for their use of my image in the first version of the video,” writes Hartwell. “This was the offer I proposed to the Richter Scales that they chose to disregard.”
Hartwell is a professional photographer that publishes her images on Flickr, with all rights reserved. When she saw one of her photos being used without permission or credit in the video Here Comes Another Bubble, she contacted the video’s creator, Matt Hempey, about getting it removed or having it properly credited.
The video, a cover version of Billy Joel’s We Didn’t Start The Fire, is a promo for Hempey’s band, the Richter Scales. Their version has new lyrics about the boom of lame Web 2.0 sites. The video features a string of images, uncredited, that illustrates the growth of these sites.
When Hempey did not respond to Hartwell’s request, she contacted YouTube and asked for the video to be taken down.
Freetards vs Copyright Bullies?
The controversy pits two indie content producers against each other. Hartwell is a freelance photographer that just wants to protect the value of her work because it’s her livelihood. The Richter Scales is just a San Francisco men’s chorus that likes to have some fun.
“Copyright law isn’t really built for resolving disputes between individuals like Lane and TRS,” says LawGeek Jason Schultz. “It’s built for resolving expensive and highly profit-driven disputes between large full-scale commercial entities like movie studios, book publishers, software companies, or search engines — entities with long-standing investments in the copyright system and in-house legal counsel to negotiate issues like licensing.”
Some commentators refer to a “fifth fair use factor” which hinges on good faith — whether your conduct might be considered “morally offensive,” Judges and juries are human, and their decisions can be swayed by whether they think you are a “good or bad” actor.
Because the controversy pits two indie content producers against each other, and because copyright and fair use are often legal gray areas, the issue has polarized discussion among bloggers.
Here are a few of the more interesting takes on the controversy:
Lane Hartwell says that “When I find someone using my work without my permission, I ask them to remove it or pay a fee. They usually remove it and we are finished. The band did not remove the image from the video when I brought it to their attention and instead they told me they had the right to use it. They could have easily apologized, removed the video from YouTube and re-edited without my image and reposted.”
Tara Hunt: “I’m really put off that there are so many people spreading, but also believing, bad rumors in this case. I’m sure the many men behind the Richter Scales don’t want a mob sent out to harass a woman whose photograph they used. None of this was done in malice: the photograph used, the request for credit.”
Derek Powazek: “As more attention is focused on social media, and people become more aware of the value of all that media, this kind of thing is going to come up a lot. It’s time that we develop some ethical practices for the creation of collaborative media. Simply asking for permission to use someone else’s work is a good place to start.”
Matthew Ingram: “I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have.”
Photographer Lane Hartwell is tired of people stealing her photos and reusing them without her permission.
She’s published her images, like a lot of us, on Flickr, with all rights reserved. Unlike most of us, though, Hartwell is a freelance photographer and a regular contributor to Wired News. Her work has featured in publications around the world.
So, when she saw one of her photos being used without permission or credit in the video Here Comes Another Bubble, she contacted the video’s creator, Matt Hempey, about it.
The video, a cover version of Billy Joel’s We Didn’t Start The Fire, is a promo for Hempey’s band, the Richter Scales. Their version has new lyrics about the boom of lame Web 2.0 sites. The video features a string of images, uncredited, that illustrates the growth of these sites.
When Hempey did not respond to Hartwell’s request, she contacted YouTube and asked for the video to be taken down.
Parody Or Piracy?
Some consider the video to be hilarious. But Hartwell isn’t laughing.
“It’s extremely frustrating to me that my work keeps getting stolen,” says Hartwell. “I feel like a broken record…having to explain why it’s not okay to just take an image because you like it or want it. I work hard at what I do and want to be paid, period.”
Hartwell’s action, and a Wired article that told her story, has triggered an eruption of discussion in the blogosphere. Many of the responses have been negative, with some going so far as dragging Hartwell’s name through the dirt.
At TechCrunch, Mike Arrington says that Hartwell is a bully that misunderstands copyright, that she ruined everyone’s fun and that the people that support her are “a mob”.
Arrington says the real issue here isn’t copyright, it isn’t about getting paid for your work, it’s that “Hartwell’s feelings were hurt.”
“Once again, a perversion of copyright is being used to destroy art!” says Arrington.
After years of attack from everyone from privacy advocates to consumer rights groups to so-called “freetards”, it looks like DRM’d music may finally get killed off by Wal-Mart & Pepsi.
And it’s not because they care about your rights as a consumer. It’s because they want onto your iPod.
According to an article in Billboard, Warner Music Group (WMG) and Sony BMG Music Entertainment are making plans to follow EMI and Universal Music Group’s lead in distributing music in the MP3 format, under pressure from Pepsi and Wal-Mart.
Pepsi’s MP3 Promotion
Pepsi plans to feature a download promotion on the inside of 5 billion of its soda bottlecaps. Sources say Pepsi customers will need to collect five caps in order to exchange them for a download; this yields the potential for 1 billion redeemable tracks.
In the new Pepsi promotion, sources say, Amazon will serve as the supplier for the downloads, and customers will need to visit a specific redemption store on the Amazon site to access music from participating labels.
If the major labels want to ride on Pepsi’s publicity, they’re going to have to offer MP3s through Amazon.
Wal-Mart Throws Its Weight Around
Meanwhile, the world’s largest retailer can’t get its online music store off the ground because of the limited selection of un-DRM’d MP3’s it can sell.
Because of this, Wal-Mart is reportedly plans to pull WMG and Sony BMG’s music files in the Windows Media Audio format from Walmart.com some time between mid-December and mid-January, if the labels haven’t yet provided the music in MP3 format.
While Wal-Mart has about 22% of the physical CD market, it’s a minor player online.
Several of the world’s leading Internet and media companies today announced their joint support for a set of copyright guidelines for user-generated content designed to protect the intellectual property of content owners.
According to the companies, the principles offer a comprehensive set of guidelines to help user-generated content (UGC) services and content creators work together to bring more content to more consumers through legitimate channels. The companies supporting these principles include CBS Corp., Dailymotion, Fox Entertainment Group, Microsoft Corp., MySpace, NBC Universal, Veoh Networks Inc., Viacom Inc. and The Walt Disney Company.
Notably absent is Google, whose YouTube video sharing site led to these media companies coming together.
The principles call for copyright owners and UGC services to work together to protect intellectual property. They include:
Implementation of state of the art filtering technology with the goal to eliminate infringing content on UGC services, including blocking infringing uploads before they are made available to the public;
Upgrading technology when commercially reasonable;
Cooperating to ensure that the technology is implemented in a manner that effectively balances legitimate interests, including fair use;
Cooperation in developing procedures for promptly addressing claims that content was blocked in error;
Regularly using the technology to remove infringing content that was uploaded before the technology could block it;
Identification and removal of links to sites that are clearly dedicated to, and predominantly used for, the dissemination of infringing content; and,
Promotion of content-rich, infringement-free services by continuing to cooperatively test new technologies and by collaboratively updating these principles as appropriate to keep current with evolving developments.
Is This The Beginning Of The End For YouTube?
While these principles seem quite reasonable on the surface, they pose multiple challenges to file sharing services. The principles place the responsibility on video sharing sites to keep copyrighted material from being shared.
The unusual show of cooperation between these media companies doesn’t bode well for YouTube. Viacom is already suing YouTube for $1 billion for copyright infringement. Earlier today, Viacom’s Comedy Central demonstrated that it could beat YouTube at its own game by introducing a legitimate video sharing site for The Daily Show that’s actually pretty cool.
The Daily Show site demonstrates that mainstream media content is coming to the Web in a legitimate, comprehensive and fairly user-friendly way. If other media companies follow suit, it’s likely to lead to an explosion of video content on the Web and a decline in the importance of sites like YouTube.
The Recording Industry Association of America (RIAA) today sent another new wave of 411 threatening letters to 19 universities nationwide.
The RIAA sent letters to these schools schools:
Drexel University (17 letters)
Indiana University (23)
Northern Illinois University (25)
Occidental College (19)
State University of New York at Morrisville (18)
Texas Christian University (20)
Tufts University (15)
University of Alabama (14)
University of California
Berkeley (19)
University of Delaware (18)
University of Georgia (13)
University of Iowa (18)
University of Michigan - Ann Arbor (20)
University of Nebraska-Lincoln (13)
University of New Hampshire (30)
University of New Mexico (17)
University of South Florida (43)
University of Southern California (37)
Vanderbilt University (32).
Each letter informs the school of a forthcoming copyright infringement suit against one of its students or personnel. The letter requests that university administrators forward the letter to the appropriate network user to allow the individuals the opportunity to promptly resolve the matter and avoid a lawsuit.
Universities could help avoid these legal battles by educating students about the widespread availability of legal sources of free music, including free music podcasts and Creative Commons licensed music.
Google today announced that it has put in place a beta version of its YouTube Video Identification tool - a service intended to help copyright owners identify and limit how their videos are shared on the site. The tool continues Google’s policy of putting responsibility on copyright-holders to police the site.
Google has been criticized by some for its tardiness in deploying the tool. The delays have served to help keep copyrighted material on the site, which has contributed to the site’s popularity. Google’s announcement makes the case that the video identification tool is a highly complicated technology platform, and that the company is going above and beyond its legal responsibilities.
Interestingly, Google has introduced the tool as it promises to offer ways for copyright holders to make money off of their content. “We think YouTube Video Identification will be a particularly useful and timely tool as we begin extending revenue-sharing and other opportunities to a wider audience,” they note.
The 
After years of attack from everyone from privacy advocates to consumer rights groups to so-called “freetards”, it looks like DRM’d music may finally get killed off by Wal-Mart & Pepsi.
The Recording Industry Association of America (RIAA) today 
Google today announced that it has put in place a beta version of its YouTube Video Identification tool - a service intended to help copyright owners identify and limit how their videos are shared on the site. The tool continues Google’s policy of putting responsibility on copyright-holders to police the site.
