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, who sent YouTube a DMCA notice and forced YouTube to take the video down. At the time the video was removed, it was coming up on 700,000 views. TechCrunch’s view on this is Hartwell claims wouldn’t stand up in a copyright fight.
I spoke with a copyright attorney this 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 people 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 almost certainly fair use of the photo. A court would look at a variety of factors in making the determination. Among those factors, a court would decide if the use is likely to adversely affect the incentives of others to create copyrighted works, and whether their decision one way or another would tend promote the progress of science and the useful arts. In this case, the inclusion of the photo in a parody work would almost certainly be held by a court to be fair use, the attorney said.
You can read more about the story at Wired, where Lane Hartwell is a frequent contributor. The only thing I have to say about this is, what a party pooper!
While YouTube may have taken down the video, it’s already spreading to other video sharing sites. I have a feeling Hartwell’s lawyer is going to be really busy sending out DMCA notices. In the end, all she’s going to get is a big lawyer bill and the video will still be on the Net (it’s call viral marketing for a reason). For those who haven’t seen the video, here it is. Enjoy before they take it down!