Give me a break, that’s ridiculous, just because someone uses a brief glimpse vs. Wired using that phot on their website, those are not even similar. Let’s chuck that one into the broken analogy pile, which is getting rather high recently…

Preserving business models is not a good way to determine appropriate IP policy, of course,

Hmmm.. there are not very many people how are saying ‘of course’ to that obvious moral truism these days, sadly..

As for whether clearing all such uses is onerous… Of course it is. And that’s the problem with the current Copyright regime that Creative Commons licenses are meant to solve. Which also would have required attribution, at a minimum.

Every example of fair use undercuts a hypothetical market for licensing of that use. Publishers, for example, argue that Google Book Search isn’t fair use because it undercuts the market for search engine licensing. In the Jon Else story, Fox presumably would have argued if it came to a court battle that Else was undermining the market for licensing snippets of videos in documentaries.

Now, an obvious difference is that licensing by freelance photographers is a long-standing commercial practice which the courts would presumably take into account. But on the other hand, I’m not aware of a thriving market in photo licensing rights for photos appearing briefly in viral videos. Whether the courts would consider that one market or two separate markets is hard to say. Similarly, Wired is a commercial entity, whereas this video appears to be somebody’s personal project. Again, it’s hard to say how that might factor into the court’s deliberations.

(I can’t believe I’m arguing in favor of attribution here, but there you go.)

If the video is fair use, then I don’t see why Wired was obliged to pay the photographer for her work in the first place. In other words, I don’t see how this could be considered fair use without invalidating the entire freelance news photographer business model.

Preserving business models is not a good way to determine appropriate IP policy, of course, but given that people have made their living selling photographs for quite a while I’m going to go out on a limb and assume they’re doing so from a solid legal foundation.

As a parallel case, consider music samples. The use seems similar to me (in fact, the video seems less transformative), but of course artists still have to clear samples and/or pay royalties.

Arrington didn’t assert (or at least, did not assert in the post you and Tom link to) that any parody is automatically allowed as “fair use.” Rather, in his (admittedly heated) post, he claimed the use of the photograph in the video was clearly a fair use, and mentioned a few reasons: the minimal effect on the market (i.e. one of the Sec. 107 factors), the “progress of … the useful arts” which is a claim directly to the Copyright Clause (and of some limited value in actual cases), and the fact that the work is a parody. Parody isn’t it’s own special defense — it’s just a subset of permissible “fair use,” tied to other factors such as whether a work is transformative, the effect on the market, etc.

It’s also worth pointing out that you, Tim, may be overstating the case when you claim that a parody can only qualify as a fair use if the work being parodied is the work being copied. The parody/satire distinction isn’t as strong as you suggest. William Patry’s wrote about an illustrative case, Burnett v. 20th Century Fox, on this point earlier this year, and Bruce Keller and Rebecca Tushnet have written about it as well. http://williampatry.blogspot.com/2007/07/i-was-maid-in-porno-store-ii.html

And here’s a discussion paper on the subject: http://www.abanet.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

And even if the issue were limited to strict parodies of the work itself, the fact that Harwell (the photographer) is snapping celeb-style pics of a business journalist (and that the photo originally appeared in a sort of social calendar-style Wired blog called “Epicenter” is, in essence, just the kind of bubble-era buzz that the video is parodying.

That is not to say that I think it’s a slam dunk fair use case. Tim, I tend to agree with your “on the one hand, on the other” analysis. In the end, I think it is a fair use, but a close enough call that it’s not worth litigating. And of course, Harwell’s already gotten more publicity out of her “whining” than she ever could have bought with whatever she charges for licensing (or with a photo credit in the video).

I basically agree with you about ettiquette, but what’s the best way for collage video artists to give credit? They may use hundreds or thousands of snippets in a short work.