Lane Hartwell is a digital photographer who has whipped up quite a frenzy in the blogosphere recently. Her position was that Richter Scales, a band and online video producer, misused one of her photographs in a video that they produced.

This video on “Bubble 2.0″ got well over a million views. Lane was upset that she wasn’t credited for the photo that they used.

Everyone else on the planet has gone into the argument about Fair Use and Copyright, I want to take a different tack. As much as I agree that we should respect intellectual property rights, I want to explain that from the standpoint of someone who has his work scrapped and copied almost daily — sometimes it’s better to take a gentler approach, especially when the rewards are greater than anything a DMCA takedown is likely to achieve.

Unfair Use Is Sometimes Fair

Thus, even if we assume that what Richter Scale did was not Fair Use, there is still room to argue that Lane’s reaction was the wrong one. Ideally, those of us who generate intellectual property want exposure. If you make a living off of your creative you want enough exposure to either –

1. Make a sale.
2. Find new clients.

By having her photo removed from the video and subsequently removing the rest of her photography from Flickr, she has made both of these goals more difficult. Instead of approaching the case from the standpoint of someone who has been wronged, another route that she could (and probably should) have chosen was to approach it from the standpoint of someone who just wanted attribution.

Even if they only gave a running list of the photos they used and where they got them from (as they do with the new version of the video), this solution could have been far more beneficial than whatever pittance that she will extract from them for misusing her copyright (The Richter Scales are not-for-profit). Not only that, but the millions of people who watch the video will be exposed to her work — which might otherwise have cost her thousands of dollars worth of promotions.

The short version of this argument is that it is nearly impossible to get rid of intellectual property theft. Moreover, in the back of their minds, most creative producers (at least in the blogosphere) will tell you that they don’t really care who steals their work as long as they provide a link back. So, instead of cutting off her nose to spite her face, it would have been more prudent to press until they gave her some kind of attribution. Or, considering that they did attribute her when she asked them to, press until they gave her an appropriate attribution.

Web 2.0 Roundup

There will always be an arms race between content producers and content thieves.

As a producer you need to recognize the fact that you are almost always on the losing side of that race.

With that being said, that doesn’t mean that you can’t extract some value from Unfair Use.

You just have to be willing to choose your battles wisely.

What do you think?

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