The Richter Scales: Men Who Blog

Tuesday, December 18, 2007

Announcing "Bubble" Version 1.1

The Richter Scales are pleased to announce "Here Comes Another Bubble" Version 1.1.

Version 1.0 was viewed nearly a million times before Lane Hartwell, a San Francisco area photographer, filed a DMCA take-down notice which caused YouTube to remove the video from its site. The take-down has caused a lot of debate in the blogosphere about issues like fair use, permission, and credit.

As background, when we created Version 1.0 we didn't see similar YouTube videos crediting every image used, nor did what we read about fair use point us towards the need to do so. Also, when Lane emailed us shortly after the video was released, we immediately gave her a credit, with a link, in the "About This Video" section on YouTube, but weren't able to assess whether that was sufficient because Lane wouldn't talk to us via phone and didn't respond to our emails with any requests or proposals before she issued the DMCA take-down request.

That said, the debate about Version 1.0 has made us more sensitive to the credit issue, and we're eager to credit all the content used in the video.

So, Version 1.1 includes, in the video itself, as complete a list of credits as we have been able to generate. We have also posted the credit list on our web site, where it's easier to read, easier to edit, and more likely to drive traffic to others. We hope folks will consider this a reasonable and fair approach that balances the letter of fair use with the spirit of providing credit where due.

The other change in Version 1.1 is that the photograph of Owen Thomas has been replaced by a photograph of Kara Swisher. Kara was the first blogger to link to Version 1.0, and we appreciate that she has described our use of her video interview with Peter Thiel as fair use.

To put our motives into perspective for people who don't know us personally, the Richter Scales is a not for profit organization from which members make no money. This past Friday, for example, we sang to a standing room only crowd in Noe Valley, yet lost money on the gig just as we have on every show we've put on since we started up in 2000. Another statistic putting our economics into perspective is that in the week Version 1.0 was up, we sold only eight CDs of previously recorded music. That's one CD sold per 125,000 viewers of the video. If this rate holds, the "profits" from CD sales will equal the $355 we spent making the video when Version 1.1 gets its 3.5 millionth view. (Mommas, don't let your babies grow up to be a cappella singers.)

Throughout this process, we have been encouraged by the overwhelmingly positive feedback Version 1.0 received, as well as by the many supportive emails, blog posts, blog comments, and phone calls full of advice so many of you shared with us in the past week. Thank you very much for reaching out to us.

-- The Richter Scales


Blogger AS said...

You guys rock, for the last few days my daily ordeal was to find the video on other sites, first daily motion, then funny or die and then on metacafe... the video simply rocks... thanks for it... and ya i posted the links in the comments about the video been around :D

11:51 PM  
Blogger Mike Sax said...

Congratulations on a very classy note... oh, and a funny video too of course.

11:56 PM  
Blogger Evan said...

So you decided against negotiating with the photographer after all this?

You stay classy, Richter Scales.

1:01 AM  
Blogger Jim Goldstein said...

Whether you make money or not you reaped the benefit of a million view video on YouTube using copyright protected content without permission. Releasing a reedited video hardly puts things right. Riding the back of other artists without as much as an afterthought of credit is a disgrace. Even more disgraceful is that you chose to walk away from negotiations to settle the disagreement with the artist who seemed to propose a pretty modest settlement that would put you both in a good light. Now you guys look like heartless amateurs who still don't understand or respect the issues facing artists looking to make a living from their craft.

8:31 AM  
Blogger Tony Wright said...

To the people who are complaining that they failed to negotiate (evan) or walked away from negotiations (jim goldstein), you might ponder re-reading the post you just commented under. Here's an excerpt:

"Also, when Lane emailed us shortly after the video was released, we immediately gave her a credit, with a link, in the "About This Video" section on YouTube, but weren't able to assess whether that was sufficient because Lane wouldn't talk to us via phone and didn't respond to our emails with any requests or proposals before she issued the DMCA take-down request."

Even if they were wrong (I don't honestly know), it's pretty clear that Richter Scales was thinking that what they were doing fell under "fair use"... Heck, maybe they still do. Some attorneys seem to agree with 'em, but IANAL.

Regardless, spitting venom at them when there was no nefarious intent seems a lot like the real estate agents who rail against RedFin... An enraged response to the larger issue that your business model is going away (or at least radically changing).

9:45 AM  
Blogger Thomas Hawk said...

Awesome work guys. The photo of Om Malik by the way from the Federated site was taken by me.

9:46 AM  
Blogger Jim Goldstein said...

@Tony Wright I read the post in full and personally I enjoyed the video, but this is about business etiquette. I'm familiar in detail with Lane's side and the reality is there were discussion and there were responses just not at Internet speed. Those that use other peoples property inappropriately don't get the luxury of setting price or terms. If there is abuse the content owner has a say... in fact a large say. Just because Lane didn't respond at the pace the Richter Scales would have preferred gives them the right to dictate terms nor price of the property they used inappropriately. I stand by my comments and in fact if you were to read my blog my original post on the issue faulted both sides.

Here Comes Another Fair Use Dispute

11:57 AM  
Blogger Jesse said...

Thanks for clarifying your position, guys.

Without insight into your dire financial situation, it was hard to get behind your position. People get upset with looters who steal food from stores during times of chaos. I don't see this as stealing at all. These people are trying to survive and feed their families.

This isn't much different. As poor, starving artists, you guys are just trying to "eat". You should help yourselves to anything you can find to advance your careers. Life is too tough to worry about the strife of others.

Thomas Hawk, I applaud you for putting your loaf of bread in front of the window (so to speak). Cyber looting is not a crime.

12:05 PM  
Blogger Joe said...

I see other creators are objecting to use of thier content:

The lesson is that rights need to be obtained before use. Many photographers create slide shows and need music. If credit/links don't work, consider trading licenses your original music content for license for images. There are many ways do this.

I enjoyed the video, good luck getting this all resolved.

1:11 PM  
Blogger Evan said...

Are you referring to members of the band as "poor starving artists"? I looked at their bios, and they all appear to be employed, including places like Google, PayPal and Pixar. Just because the band isn't making any money doesn't mean these folks are starving.

1:15 PM  
Blogger ceedee said...

Thanks for explaining your side of this petty tussle.

FWIW I conclude that it was an oversight to not have credited Lane in the first place but that's forgivable.

Threatening legal action and waving invoices, however is not.

I'm fairly sure that one day Lane will regret not capitalizing on an amazing PR opportunity.

3:00 PM  
Blogger dbspin said...

You guys are utterly in the right. This takedown was a cynical abuse of broken copyright legislation by a publicity seeking copyright maximalist. If fair use if to mean anything, then the not for profit repurposing of content, for the purposes of satire, which does not in any way reduce the original value of such content, must be a reasonable example. I hope this experience doesn't deter you from making more amusing videos in the future.

7:06 AM  
Blogger tinou said...

you guys handled this totally wrong. you should have blacked out her photo and put "redacted at request of copyright nazi." problem solved. while she has made a total mess of the situation, fault lies with your band as well, for ignoring the photogs' copyright desires. "fair use" is a "defense" -- a loop hole, if you will. just stick to photos that are CC licensed, or ask first. both parties in this controversy need to be a little more humble and stop thinking they're 100% right.

10:52 AM  
Blogger Dave said...

Keep singin' guys.

You have, without intending to do so,
raised the general understanding of some complex legal issues dramatically.

"Fair Use" is a defense that I hope you don't need to use.

I hope you keep making videos and find suitable images to match the song parody that don't cause you to loose control again.... (and again).

It's another test case for re-mixed culture.

I can't wait to see how much Lane values her contribution to the 1.0 version of the video (one cent a view is $10,000).

Ramona Rosales: "I'm totally against the unauthorized use of my image. I was never asked permission nor have I received any compensation for it's use; furthermore I don't feel it is justified simply because they gave me credit. I don't consider (nor does copyright law) the use 'fair use' or 'use in parody' since it is a slide show of the original images. The Richter Scales are benefiting from the video because they are promoting themselves and selling a product (their CD) on their website/blog. Because of the free use of my image (and all the other photographers/artists involved), they stand to make a profit. I will be contacting the Richter Scales today to remove my image."

Good grief. Call the EFF.

2:04 PM  
Blogger Ian Aleksander Adams said...

plus, as far as I can tell, they made every effort to be polite and credit. It's youtube. That makes them much better than 99% of video "creators" on that site.

4:54 PM  
Blogger Ian Aleksander Adams said...

I want to add that I think in different circumstances the response of the photographer should be appropriate.

some examples of unapproved use and what I think is appropriate:

Corporate ad - Send bill or use legal action

Editorial usage (in a publication for sale) - send bill or use legal action

Website Usage for corporation - Send bill or use legal action

Website for nonprofit - send email asking if they knew they forgot to ask, possibly compensation if they are able, ask for credit

non-profit publication - ask for credit, possible compensation

arts non-profit publication (zine) - ask for credit

arts usage (appropriation, gallery, etc) - ask for credit

internet video - ask for credit, postdated royalties if video ever becomes popular and makes large amounts of money (never)

myspace, livejournal, imageboard (such as, etc - laugh, post credit yourself as anon, stop being such a stickler and realize the internet is always going to be a den of scum and villainy. Go have an ice cream.

5:36 PM  
Blogger nalts said...

I think this summarizes my opinion of this lunacy:

11:41 AM  
Blogger nalts said...

This comment has been removed by a blog administrator.

11:42 AM  
Blogger David said...

Ahh, and here come the leechers, trying to scrape some traffic for their own blogs...

"Hey! I made a video about it! Come see it! Make me somebody!"


If I worked at Google, PayPal or Pixar, as it has been reported that the band members do, I would be a little more contrite and apologetic about the original infringement and a little more worried about keeping my cushy day job.

Otherwise they might have to pay the Silicon Valley rent with their music...

8:46 AM  
Blogger Myth said...

@tinou "...fault lies with your band as well, for ignoring the photogs' copyright desires. "fair use" is a "defense" -- a loop hole, if you will..."

Theyv are legally and ethically free to ignore artists' desires. defense != loophole.

The biggest problem for so-called "content owners" is people like her who think that copyright law gives her complete control over any possible use of her work. Too bad she didn't choose to attack unlawful use instead, then I'd be sympathetic.

7:59 AM  
Blogger Eric said...

I'm a professional photographer. It's my opinion that Lane is in the legal right, but your mistake was an understandable oversight. I posted a more in-depth analysis of the situation my blog.

7:45 PM  
Blogger Joshua said...

Maybe in the future you will ask to use someone's work before simply taking it without permission.

7:21 PM  
Blogger Eric said...

There was some discussion in the comments section on my blog that I think is relevant and interesting:

Blogger Ramsey said...

Sorry Eric, but I have to call bullshit. No offense, but the stance that you take in this particular example is perched on a very fine line and by sharing your view on this matter you are also propagating an uninformed view that others can take the wrong way and continue to spread misinformation. I would not argue against your stance if you had maybe a few resources quoting actual copyright law or other parallel cases that exemplify the issue that we are discussing. Or maybe even some resources that those who read your blog can use in order to form their own view.

Without more context however, I feel that one can misunderstand the long reaching effects of such a stance. In the short term view, the right to have exclusive rights over something that you have created will put money in your pocket (not food on your plate as many argue from the "starving artist" stance). It is a feel good knee jerk reaction to want to defend somebody who created content that was misappropriated.

What are the real consequences and the long term effects of such a view? This question has been asked by people before us and their discussion can be found here

There you will find statements from people who actually study law and have been through some of the same situations that you described in your article.

Another philosophical argument comes in the form of a quote from Robert Heinlein. The quote is an example that leans a bit more to the extreme side of the argument but I feel that it illustrates my view point well.

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest."

February 6, 2008 10:30 AM

Blogger Eric said...

I see your point, Ramsey, but I think that your view is extreme and distorted, and is based more on your own personal views than on aiming for the maximum benefit to society. You're not arguing that this is fair use, you're arguing that Copyright law is invalid. From a legal perspective, you're absolutely wrong, forgetting the philosophical side of the argument.

As with most arguments, I think there are two sides. Both are right, and both are wrong, and I think it's our job as a collective to find the middle road that leads to a happier, more productive society. One where photographers can earn a living making photographs, musicians can earn a living making music, and filmmakers can earn a living making films. I think that society benefits enormously from our arts, and those arts must be encouraged to thrive, and whether you like it or not, I think that government does have a role to play in getting this mix right. I think right now it's leaning too much toward content creators (or more specifically their heirs or corporations), thanks in part to forces like Sunny Bono and Disney. I think that the arguments presented by the speakers you linked to are very good, and very informative, and I wonder if you listened openly to the things they had to say. Their views seem very much in line with my own.

I believe that the first speaker at the page you linked makes a very eloquent point:

"Your film and your art is valuable to the filmmakers, and especially musicians as well. Art is not funded very well in this country, and we certainly have stayed alive as filmmakers and been able to continue making films by selling and owning our films, and as different mediums come out - such as video or dvds, or cable television by being able to sell them in those markets. [...] All I can say is there has to be a kind of fairness about it. Artists have to make a living as well. Art needs to be somewhat protected." - Chris Hegedus

My view is that the original length of copyright (14 years) is a good term. I hate the idea of orphaned works and the loss of the public domain as much as anybody, and in my political work, I have strongly promoted the ideas of Lawrence Lessig. The idea of big corporations or estate heirs feeling entitled to hold our culture hostage, quite frankly, makes me angry.

I find this quote from composer Anthony Kelley to be extremely relevant to this particular discussion.

"I think intention or purpose is a big deal to the artist. If it's intended for mass commercial purpose, it would really be to someone's advantage to get in contact with the artist if possible. If on the other hand, it is intended for education or for local demonstrative, or exploratory artistic purpose, I don't think artists get as rialed up about that." - Anthony Kelley

This is essentially why I said in the last paragraph that I would have been delighted if one of my photos were used in their video, because it didn't strike me as a particularly commercial use, but it did seem to be a humorous statement of some social value. However, if a huge, major label band used one of my photos in a video that got a lot of play on MTV, I would almost certainly be taking them to court. The difference? Intention. The Richter Scales probably weren't terribly financially motivated by their use, but the major label artist is looking to expand their musical careers and cash in on the commercial value of their MTV video, and that makes a big difference to me as an artist.

"The goal of Copyright is to encourage progress and also to encourage dissemination of work."

"Making new works is expensive! You need to get paid for it, to get paid for it, you may need a legal right, one of the rights is a copyright, which you can trade away. That gives you a power to make a deal. The deal pays (and this is why we care about it) for the work that you're going to do. You can say, "I'm going to get paid for this" so you can get someone to invest in it, or you can run it up on your credit card, and believe that one day you're going to get paid for it, and you can make your movie because of that right..." - James Boyle

5:24 PM  

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