Over the past week a catchy video has been circulating the web titled “Here Comes Another Bubble” (Note: this link is dead as of 12/11/07). The video has music created by the Richter Scales sung to Billy Joel’s “We didn’t start the fire”. The video itself is comprised solely of photos of a variety of technology icons who have started Web 2.0 companies that many think are way over priced in valuation. Its been the talk of the town, being linked from a variety of tech blogs big and small including the likes of “All Things Digital” (twice even)

The sharp humor, catchy twist of the well known song lyrics and timeliness of the “bubble” discussion made for a very entertaining video. The last I saw the video had over 300,000 views on YouTube. The only problem is none of the images were cited; credit wasn’t given to any of the photographers and few were asked permission to have their work used in this format including a friend of mine Lane Hartwell. Ironically credit was given to those that put the video together, all that contributed music including Billy Joel and of course the Richter Scales.

The justification for the lack of credit by the Richter Scales on their blog is that it was “impractical” given the number of sources and that the parody was protected under Fair Use. As a refresher I had discussed Fair Use in a previous post titled “The Wars Surrounding Photographers and Other Creatives” back in September. Fair Use is an area of law that is continuously being defined in the courts particularly in relation to the web and there are quite a few cases that have set precedent. As it stands there are “four factors considered in determining whether or not a particular use is fair” (see definition of Fair Use at the U.S. Copyright Office web site).

In this case it would seem the Richter scales are trying to circumvent the determination of “whether such use is of commercial nature” by creating a free video and giving away MP3’s of the file. What is difficult to escape is that if you look at their home page the video is being used to promote sales of previously produced CDs/songs and upcoming concerts. So the question arises “Is Web 2.0 marketing via the distribution of a video on YouTube considered commercial use?” In my non-lawyer opinion it would seem so. The video itself had a URL to take people back to their web site. Clearly this is promotion and commercially oriented. The next question is “Does parody trump the consideration over the determination of whether the use is commercial in nature?” That is the $64,000 question.

All the legal mumbo-jumbo aside what is the big deal? I’ve talked about Creative Commons: A Great Concept, I’ll Never Employ and referenced previous talks by Lawrence Lessig who speaks of the the law strangling creativity but when you get down to the core of the issues its about getting permission if you use someone else’s work. No matter what side of the fence you are on for this or any other similar case I can’t imagine that getting permission is that difficult. If someone has a Creative Commons license giving someone blanket permission to use an image or if an image was designated “All Rights Reserved” it’s really not that hard to track someone down in this day and age to ask permission… parody or not.

In many regards I feel for both parties involved. In my blunt opinion the Richter Scales pursued this in a dumb fashion and took a gamble by not citing everyones work. The Richter Scales would be plenty pissed if their work was being used with out citation and/or was being used with out permission. In regard to the photographers, including my friend Lane, whose work was used but not cited the images should have been more heavily watermarked or on a site with greater protection (assuming it was taken off of Flickr). As noted in my latest podcast, Ken Light makes a great point that the only sure way to protect your photography is to not have it out in the world and that includes the web. We all know that isn’t necessarily the best business decision as the web is a key marketing tool. As pointed out in the example of Ken Light’s John Kerry photo the best way to protect your images is to file your copyrights with the Library of Congress (see Copyrights: Protecting My Photography). I’m curious to see how the claim of Fair Use is interpreted in this case and whether photographers should start to fear satirists who feel they don’t need to credit the property of photographers or for that matter anyone who looks to claim a defense of “Fair Use” to bypass copyright protection.

[tags]fair use, copyright, Richter Scales, Lane Hartwell, Ken Light, Here Comes Another Bubble, video, photography, All Things Digital, YouTube [/tags]