The 'here comes another bubble' brouhaha

There are, of course, cases where misappropriation of posted material isn't going to be remedied by adding a photo caption or a byline, but it's often all anyone is looking for.

I've held off posting about the whole Lane Hartwell, Richter Scales, "Here Comes Another Bubble" brouhaha. I've done so, in no small part, because my own feelings on the topic are...complicated.

On the one hand, I generally favor people sharing their creative output to the degree that it's economically feasible to do so. Our culture is richer and more interesting for the widespread tearing down of walled gardens.

Just to be clear, I'm not advocating some parodic version of free culture in which any content that can be grabbed should be grabbed and there's nothing anyone can do about it. Rather, I'm just suggesting that rigid and unrelenting copyright enforcement for even relatively minor infractions doesn't make me terribly comfortable. (I understand that, for Lane Hartwell, the Richter Scales' use of her photo was a sort of "straw that broke the camel's back" because of past use of her pictures without permission.)

On the other hand, as I've read through some of the commentary and comments in this case, I've gotten a bit irritated. This comment is fairly typical: "A photo of some grinning geek is not protected art. It's a commodity, such as a phone number or the atomic weight of carbon." In other words: eh, it's only a photograph. What's the big deal? As a sometimes photographer, I can't tell you how many times I've run into a similar attitude, even from writers who would have plenty to say if you grabbed a piece they had written and "repurposed" it.

There's also been a great deal of poorly informed commentary about Fair Use. Jason Schultz at LawGeek gives the best rundown of the legal issues in this case that I've seen. I'm not sure, based on a lot of discussions and reading about copyright law in the past, that I agree with his ultimate conclusion (that the use of the photo was probably Fair Use). In any case, as he says, it's a close call in an area of copyright law that is notoriously squishy and very dependent on the specific facts in a given instance. So, if you want to read up on the legal issues involved, I defer to Jason's post.

However, in my view, Jason's most important point has nothing to do with the law.

I'm no Internet ethicist, of course, so I can't really say what the proper ethical outcome should be for this or other similar situations. However, for me, the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator--in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.

There are, of course, cases where misappropriation of posted material isn't going to be remedied by adding a photo caption or a byline, but it's often all anyone is looking for. I have no idea whether that would have been sufficient in this particular case or not, but for a lot of us, getting the proper credit is mostly what we're looking for.

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