So the video that everyone has been talking about is history - the victim of a bullying tactic by a photographer and her lawyer. Once again, a perversion of copyright is being used to destroy art.

The video, set to the tune of We Didn’t Start the Fire by Billy Joel, mocked just about everyone in Silicon Valley as being part of a new technology bubble. I wasn’t spared - I even have the honor of being the display image for the video.

But the video has now been taken down, considering Lane Hartwell, the photographer who took one of the pictures that was included in the video, complained that she wasn’t paid for her work. She hired a lawyer, and the creators, Richter Scales, decided to take it down rather than fight that Hartwell had no right to stop them from using the image.

A bit of a mob in favor of Hartwell has come together to support her. But the mob, while virulent in their support, has little understanding of copyright law.

I spoke with a copyright attorney that afternoon and described the facts to him. He confirmed my thoughts on the matter. Copyright is a structure around prohibitions, not permissions, he says. That means it lays out rules for things folks cannot do with your work - it does not give you the right to demand permission before any use is made.

The Richter Scale video was nearly certainly fair use of the photo. A court would look at a variety of factors in making the determination. Among them those factors, a court would decide whether the use is likely to adversely affect the

incentives of others to create copyrighted works, and does their decision one way or another would tend promote the progress of science and the useful arts. In that case, the inclusion of the photo in a parody work would nearly certainly be held by a court to be fair use, the attorney said.

The real issue here is that Hartwell’s feelings were hurt. She wanted attribution in the video, and the creators ignored her. Attribution and people’s feelings are not things copyright law considers; rather, it sets forth the rules under which copyrighted works may be or may not be used by others. In that case, a court would likely side with Richter Scales. But to avoid the risk, they decided to simply take down the video. I hope they remake it without Hartwell’s images and repost it soon. It’s too good to not be republished.

Societal ideals around what constitutes ownership by art are changing. humans who try to protect and silo off their work are simply being ignored. Those that embrace the community, and give back to it not only allowing but asking for their work to be mashed up, re-used and otherwise embraced are being rewarded with attention. At the core is a basic implicit understanding - whether you want to be part of the community, you have to give back to it, too.

See our related post, “Being silly and Litigious Is No Way To Go Through Life.”

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Original post by Michael Arrington