I Love Photography, and I Am Not On Board with Creative Commons.


RANT.

EDIT:

Well, first of all, I quoted and gave a link to the PDN site, which is “fair use”. I also quoted only enough to qualify as “fair use.” So, if I am a hypocrite for working as a blogger and using fair use without buying into a slippery slope of the “right to take it and use it” approach, then – yeah. Sure. Whatever.

Additional EDIT: Lawrence Lessig has a well written post on Huffington that sheds a bit more light on what was actually said. I am publicly apologizing for calling Mr. Lessig a ‘moron’. I will not happen again. I will continue to disagree, but will do my best to be more civil. I get a little passionate and that is not an excuse for being rude. BTW, I also apologized on Twitter and Mr. Lessig accepted.
———
Another Additional EDIT: John Harrington takes the time to dissect the statement by Lessig at Huffington post:
Lessig’s Kool-Aid: Proposed New Norms – Don’t Drink

It is of course the crux of the argument. The cries of ‘out of context’ are simply the recent deflect and subvert of certain types of elites. The context is no different when left in as a whole statement. Point is – they want copyright to go away, to be replaced by some sort of new thing that will NOT protect the creators of IP. Why? Why would someone want to do that?

I got nothin’ for ya. I am simply amazed that we are having to fight anyone for the ability to control something we made. Period.

Article:

I have to get this off my chest. Once again I find myself being attacked by people who want to be artists, and in many cases ARE artists because I am on THEIR side in the craziest, most amazingly insidious rights grab I have ever seen.

But – as with all things, the packaging becomes the most important part of any product – even those products which are somewhat ethereal, difficult to explain and have a basis in individual rights.

This article today on PDN, “At Vimeo Festival, a Call to Relax Copyright Laws” has me steamed.

I understand that I don’t ‘get it’ – I never will. It doesn’t make any sense to me. And I don’t care if someone wants to give their work away. And I don’t care if some kid remixes one of my images into his senior thesis, or appears on some video of Carly Simon or whatever. I. Don’t. Care.

What I bristle at is the preposterous notions that CC is built upon.

1. That people have a ‘right’ to the art created by someone else.
2. That asking for permission is a terrible, terrible burden that shouldn’t be foisted on the progressive artist.
3. That as an artist, I am not, nor was I ever in control of my product – copyright law prevented me from allowing free or unrestricted use.
4. That it is too much of a problem to protect the art, so screw it… let it go.

1. That people have a ‘right’ to the art created by someone else.
“Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit. – Lessig”

The word “Right” seems to be thrown around a lot these days. A right is a totality. It has no limitations. A person has a right to liberty. A right to life, and to self expression. Freedom is a right in my country, but it is not a right in many other parts of the world. A right has NO parameters that would infringe on itself.

I have the right to free speech (for now), but that does not include slander, libel or yelling ‘fire’ in a theater. That is because when my speech crosses over and creates a problem for someone else, the freedom to ‘include’ others in the repercussions are not covered. My free speech ends when it ‘hurts’ someone else.

Let’s take a look at the ‘right’ someone else has to my work. And let’s go all the way and agree, for sake of argument, that it is a ‘right’ given to others to access my art.

And I create a symphony. A really good symphony. An awesome symphony. (Yeah, I’d actually like to do that before I kick the bucket.)

But I don’t want to have anyone play it. I only want to ‘have it’ in my home.

If we buy into the idea that others have a ‘right’ to that work, a full on ‘RIGHT’ to it, someone can come and take it from me. Maybe they are my kids, or my estate… or maybe someone who heard that I have it and simply wants it.

They have a ‘right’ to it? Because it is art? Because it is IP? Why? Why do they have a right to that work that I may for some reason never want to be heard.

Remember, if it is indeed a ‘right’ then I cannot stop them, and the Government must protect the rights of the people – so in this case, what does that mean? If the right is given to the ‘requesting party’, where do my rights end? Both of us may not enjoy the same ‘rights.’

2. That asking for permission is a terrible, terrible burden that shouldn’t be foisted on the progressive artist.
““We need to stand up and acknowledge what we’re doing, give people credit, and thank them, but not ask permission,” Lessig said.”

That seems to be a mantra (just check out the tweets from Wednesday, October 13th – @wizwow) that asking for permission is an outdated, time wasting, silly thing to do.

Why? Why is it so hard? I am so easy to find. Google my name – hundreds of pages. My email, twitter, phone number, LinkedIn, Facebook… available everywhere. I am not alone in that. I have found contact for every single person I have ever wanted to work with as a photographer. Wasn’t hard. Took time, effort and hard work, but I found them. And I ask them. And sometimes they say ‘No.’

That is really the issue. Someone may say “NO” and that is not acceptable when you have the ‘right’ to use something that someone else made.

Asking for permission is NOT an issue, but a Red Herring argument that others use to create a problem that doesn’t exist. Are there instances when someone cannot find someone to ask if it is OK? Sure. That means you can’t use it.

Life is unfair. Shit happens.

3. That as an artist, I am not, nor was I ever in control of my product – copyright law prevented me from allowing free or unrestricted use.
“Copyright laws are unenforceable,” Miller asserted. “The way the law is written versus the way we live are parting ways.”

Well, that is simply bullshit. Of course I can control who does what with my work. As a musician I have protection from ASCAP and BMI. As a photographer I have the ability to copyright my work, and keep it in or out of the public’s grasp. I can choose to put it in a box and hide it under the bed. But I have also had the ability to simply say “sure – you can use that pic in your blog or your website.”

No one has taken that from me. But that seems to be the other side of the argument… “If you want your work to be used, you MUST be involved in this new and exciting approach to ownership.” No. You don’t. You have the right to do whatever you want with the work. Send it out with permission to use all day long.

This of course all depends on how one defines the work as a ‘right’ – and whether asking for permission is a huge problem.

To Lessig’s credit, he said:
Lessig said, “I never tell artists that they should give away work. If you’re interested in distinguishing between commercial markets [where users of your work pay] and community markets [where users don’t pay], the [Creative Commons] non-commercial license was designed for that. If you want to make a commercial use of your work, then you have to ask [permission] of the artists” [who’s work you have used.]

But that goes back to the problem (imagined) that it is somehow a terrible burden to get permission and that we need an entire new type of legislative law to protect those who simply don’t want to do the hard work of doing the hard work.

I do believe that there must be some changes in the copyright laws. Mediums have changed. Momentum has changed. Artistic endeavors never imagined have changed. But instead of ‘fixing’ the problems so that creators can own their works, we have this:
“And Miller advised, “If you get a take down notice, re-name [your work] and re-post it in different formats. Get into an arms race with them. Make it tedious for them.””

To all the twitter folks who said I don’t get it… I get it just fine. They are gonna take it from me, and I need to STFU. You tweeted that I was unaware of the subtleties of the CC approach… that I was not able to quote anyone in context.

Read it again… “We want it, we take it”. I have no problem understanding that.

And to those who think my mention of the slippery slope was ‘fear mongering’ – what part of the above do YOU not get? Take it, use it, and keep using it by making it tedious for the PEOPLE WHO MADE IT POSSIBLE TO BEGIN WITH. WTF— Are you kidding me?

4. That it is too much of a problem to protect the art, so screw it… let it go.
“”Now there is no way to know who you need to compensate. Copyright is the most inefficient property rights system known to man. And that’s why you have the right to take it and use it.””

Well… if it is mine, you could, you know… send me a lil somethin somethin… LOL – This makes no sense to me.

“No way to know who to compensate?” How about the person who created it. Find the agent, find the production company, find a friend of a friend of a friend… it is not that hard. (‘But Don, what if I try and try and try, and still cannot find the person who owns it?” Then you don’t get to use it. Seems pretty simple to me.

“Copyright is the most inefficient property rights system known to man…” Really? Doesn’t seem that inefficient to me – unless you buy into argument One above… that one has a ‘Right’ to that which is created by others. I don’t, so it seems pretty cut and dry to me. I don’t feel I have a right to anyone else’s stuff… not software, not photographs, not music, not poetry, not ‘snippets’ of a passage to ease me over a problem in a score… I’ll just retrograde it.

Maybe I am in the minority. I was told that my position was seen as being very negative. OK… I am negative about artists losing their rights. I am negative about arguments that seem very specious to me. I am positive that I will never be positive about this movement. I see it as a loser for artists.

Maybe I am wrong. Lots of people are wrong about a lot of things. I will stay confident in my belief that artists, whether professional or not, create something cool, something special, something magical, something beyond simple comprehension. I love those who create.

Ask yourself what about the positions held by those quoted seems as though they are on the side of the original creator?
And just so we are clear: “And that’s why you have the right to take it and use it. – Larry Lessig.”

Nuance? Really? Seems really really understandable to me.

Get back to me with specifics, please.

BTW: PDN ONLINE has this paragraph at the end:
“Downplayed (but not unmentioned) by Lessig and Miller was the legal risk of defying the current copyright law. While they and others advise artists to push for what amounts to a broad expansion of fair use, the financial penalties for defying the existing law remain prohibitive.”

You may see it as a wonderful fight against “the man” but in reality, it is ‘the man’ that is pushing it hard. Heh.

APPENDED:
One of the twitter users had a terrible time with my points. She was quite adamant that stuff was to be used freely, but absolutely told me I could not use her tweets. I will let that stand as it is.

She asked instead that she be able to send an email that would explain her position. Here is that email:

I believe that we should have more relaxed fair use laws. I believe
that individuals should be able to re-use portions of existing
copyrighted material, in order to realize their artistic vision — as
long as these remixes are not used for commercial purposes. To me,
this is the epitome of how culture should spread. Re-inventing the
wheel as an artist, is halting culture, and it’s making art more
expensive. Nothing good can come from that!

Our main disagreement seems to be on the fact that I believe that fair
use laws should be relaxed and descriptive-enough so people can re-use
parts of existing works without permission, while you believe that
they should at least ask first. The problem with asking is that not
everyone replies — even if these artists don’t mind people re-using
and remixing their work! In fact, most artists don’t reply! And this
is terrible for culture. The other problem with this is that when
artists die, there’s no one to ask! I know this all to well in the
book industry, where institutions want to *save* some old books by
digitizing them, and yet, they’re still under copyright, but there’s
absolutely no one to ask for permission! The same goes about film!
We’re losing 20th Century culture, not because we can’t buy or license
these works if necessary, but because we can’t even ask for
permission!

So if some artists lose a tiny bit of control, by not having remixers
asking them for permission all the time, but at the same time this
could make culture flourish, then losing some control is a good thing.

My reply is as follows:

Hi.
Thanks for this.

We have fundamental disagreement. And some agreement.

1. I do believe that copyright laws need to change to reflect the current and upcoming changes in media and diversity of creation.

“I believe that individuals should be able to re-use portions of existing copyrighted material, in order to realize their artistic vision…”

I do not.

“– as long as these remixes are not used for commercial purposes.”

Still disagree. Personally, I usually allow them to do so. But I like having my option as the creator. You are implying that my wishes do not count.

For instance… say I am a deeply committed somethingorother and you make a mix with my images that totally run against my core belief. Is it wrong for me to not want that to happen? Is the fact that I have a deeply held belief not worthy of involvement. Asking would have mitigated that problem instantly.

“Re-inventing the wheel as an artist, is halting culture, and it’s making art more expensive. Nothing good can come from that!”

While you may believe that with all your heart doesn’t make it true. “Halting culture”? Really? Not being able to mix a ‘groove’ by Kanye is halting culture? Not having the ability to grab a Beatles song for the background of a ‘engagement shoot’ is halting culture? Really?

Not having to listen to Kanye is a possible ‘good’ coming from that – but I digress..

“The problem with asking is that not everyone replies — even if these artists don’t mind people re-using and remixing their work!”

Two things. Tough. And a non-reply IS a reply.

I do a ton of direct mail for my studio and my clients. I do not have the right to challenge someone who doesn’t respond to my direct mail, do I? (I wish I could… heh… “Dude – I sent you a mailer that cost me $19 bucks and you didn’t get back to me… loser creep. I’ll never ask you for an annual report gig again… you’ll see.”

“The other problem with this is that when artists die, there’s no one to ask!”

Yes. That sometimes happens.

“So if some artists lose a tiny bit of control, by not having remixers asking them for permission all the time, but at the same time this could make culture flourish, then losing some control is a good thing.”

No. It is not now, nor will it ever be, a good thing.

I wish I could go back to the 70’s and make that purchase of “Moonrise, Hernandez, New Mexico” – Adams for $200. I was there, and I coulda – but I didn’t. So that moment is lost. I would love to hear Chopin play his ‘Etudes’ – I really would. Nope… not happening. Nor will I ever see Alvin Ailey dance in a performance, or Coltrane play “A Love Supreme”, or watch Bird and Dizzy trading 8’s – all lost. All I would give nearly anything to see.

It is what it is. It is the ethereal, fleeting nature of art. It is a magical, mystical endeavor. It comes at great expense, and I am not talking about money. And it belongs to the artist. And it belongs to the shifting sands of time.

Thanks for the email.

Hope this finds you well.

— Don
You can see the whole email exchange along with the emailer’s response to my response here: Why I Think Education is Failing Today’s Artists. Intellectual Fail and a Sad Commentary on Rights.

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This is a place for photographers.

Hi, I'm wizwow - also known as Don Giannatti. Photography has been the focus of my life for most of my adult years. I have written three books for Amhearst Media (available on Amazon and Barnes & Noble: keyword 'don giannatti'. Lighting Essentials is my flagship blog and e-zine with a slightly different slant than most photography related sites. If you are interested in becoming a better photographer, check out Project 52 Pros.

Thanks for visiting.

48 Comments

  1. Preach It!

    Seriously, this is Theft, they KNOW it is Theft, and they are already trying to rename it and rationalize it. Clearly they KNOW it is THEFT, as they are advising people how to get around enforcement, make enforcement of the law even more difficult. “Creative Commons” SOUNDS better, more positive than “Theft” or “Copyright Infringement” or “Criminal”

    So they are trying to reframe and redefine it: they are creative, common, culture-advocates, and people who create things, try to protect them from theft are the “evil” ones.

    And, if they are taking all this stuff, then using it to “create” their own work, are they giving that work away? Or are they hoping to sell it?

  2. Okay, I’m just going to paste below something I wrote in response to a blogger / “journalist” who, after writing for the Huff Post for a number of years, now wants to be paid by Huff Post. She was politely turned down and now she’s finished. My comment on her blog is, I think, relevant here:

    … Well, I’ve never read any of the author’s reporting nor opinion pieces so I don’t have anything to say about what, if any thing, she needs to do regarding her writing style or what value to attach to her statement that she “gets” the president. And while I understand that the author never expected to be paid for her blogging contributions, her complaint makes me think of the phrase “content wants to be free” (I believe someone wrote a clever book arguing that writers, musicians, etc. should give away the content and make money off what I’ll term the “incidentals” makes me think of Delta or Continental giving away the flight and trying to cover fuel prices via $15 bags of peanuts).

    I don’t mean that the author believes content wants to be free (after all, she wants to be compensated); but this notion of free (which has been touted as the new route to our economic freedom) is filled with assumptions about human behavior that run counter to our long experience; i.e., the more people get for “free” the more they want (if not expect) for free and the less they value something that they’ve received for free. It feels like this rush to be free is worked at from different angles.

    The first angle, which comes from the content producer, is this: since technology makes it easier (but does not guarantee) for my work to be accessed by large numbers of people, and since I’m always thinking about how to gain more control over the marketing of and compensation for my work, let me give away a song or two and see what comes of it.

    The second angle, which comes from management / The Man / The Woman, is this: I’ll invite members of the great unwashed to submit their work for free with the unspoken, unwritten, totally non-binding and unenforceable dream of being discovered or recognized for their talents. The content producer might think this arrangement is a meeting of the minds, but The Man/Woman understands it’s a marriage of convenience, at best. The content producer who thinks that this new world with its new technologies and constant change feels more (small) democratic and even (small) catholic, fails to see that this “new world” is, more often than not, sharecropping without the benefits.

    I was at your Columbus 2010 workshop, Mr. G.

    • Well thought out post, Alan.

  3. I suppose my biggest disagreement with this isn’t in what you’re saying – that you, as an artist, should have the right to control your work and decide if and how it will or won’t be used – but with conflating the general thrust of that article (calling for legislative relaxation of copyright laws) with Creative Commons licensing. Creative Commons licenses were designed to give artists who wish to make a blanket statement about use of a piece of work OTHER than ‘no’ an option. It’s not mandatory, and my decision to use a Creative Commons license for something I’ve created in no way prevents you from using standard copyright for your work (nor does it prevent me from using standard copyright for some other creation).

    I don’t think it’s a bad idea to have ways for an artist to preemptively say yes, and my support of legislative recognition for alternate licensing in no way diminishes my desire for artists to have the final word in how their stuff is used. I simply have a subset of my work that I would like to offer up freely, and I am glad to have a way to mark that subset as such. That’s what Creative Commons licenses are – not a threat to anyone’s right to choose traditional copyright.

    • I totally understand the idea behind CC. I even think that there are some useful points to it. There are some parts I could even get behind.

      But the concept of CC and the realities of what is actually being proposed, pushed and propogated is something quite different. I rarely accept people at their word when their actions are not supportive. Walking the walk and talking the talk is something I want to be hand in hand.

      I have read the interviews with Lessig from nearly the beginning. I have heard what he has said to groups like the Pirate Party in Sweden, ASMP and others. Believe me when I say that there may be some discrepancy in how the message is delivered to different groups.

      If an idea is really good, and beneficial, it doesn’t require multiple packages, ‘tonality’ changes, and the diverse messaging seemingly created by whatever group is being addressed.

      Watch what they do, not what they say.

      Read the quotes about “Just taking it” and “making it hard” on the creator. Do you see anywhere that Lessig steps in and states that actually stealing the work is NOT what he is about?

      Nope – I don’t either.

  4. two words… Harlan Ellison!

  5. This “convenience of many outweighs the rights of few” argument is coming at us on way too many levels nowadays. I never thought I’d see the day where conveniences and services have been mislabeled as rights and demanded for free. I can imagine my clients now: “I will pay you for the shoot, but I don’t want to buy usage. I’m going to steal your proofs. Err, I mean I’m going invoke my 28th amendment right to use the images.”

    Don – if you ever do have a chance to get Gillespie and Parker together again, invite Monk and I’ll buy the beer.

    • Oh man… can you just imagine?

  6. Amen Don! If we let go of our right to manage as we see fit our art then we have NOTHING and that doesn’t put food on our table, doesn’t pays the bills, taxes, etc… Copyrights exist for the purposes of not only defending that we are as creators the ones who decide what to do with our creations but also to defend our way to earn money and live from our hard work.

    For him to make such an idiotic proposition has no consequence: he has a monthly salary from an Harvard University and he can make this kind of selfish statements without any kind of impact to his well being , however for the rest of us who have to get our salaries from our photography, video, audio, music, books, paintings, etc. the creative commons proposition he makes is like telling us to forget about working for any money which is absolutely and monumentally stupid because there’s no one in the world who can live their lives without earning money.

    If he is so adamant to defend this then I have a proposition to make him: for a whole year stop receiving any form of monetary compensation from your work but go to work every day, after the whole year has passed let us know how can you Professor Lawrence Lessig from Harvard University could survive without a penny in your pocket (and that means you can’t ask for welfare either) Because that’s what you are proposing us to do, to stop being a useful member of society and the economy.

  7. The entitilment culture seems to be growing more and more… Keep telling em how it is Wiz!

  8. I’m gonna come over and borrow all your camera gear without your permission, kay? If I have a right to your work than I must have a right to what you used to create it right? I know that’s an exaggeration, just trying to be humorous in saying that I truly hope you are not in the minority. Loved reading this rant.

  9. Let’s see… the United States Constitution includes (and I’m paraphrasing here) that individuals have the right to their artistic works and discoveries. So if someone has the rights to use my photos or other IP works for their own non-commercial use – then what’s to say that I can’t hijack or reverse engineer the recipe for Coca-Cola and make it at home… for my own personal and non-commercial use. Think that will fly? Or how about I figure out exactly how to make a D3s or 1D Mk IV and make it for a fraction of what it would cost me to buy it… again, for my own personal use of course.

    Oh yes, and let’s not forget that little bit in the Constitution that I mentioned above was written before any amendments were written, and no part of it was amended, changed, or excluded. That tells me that our founding Fathers were pretty serious about the subject and it’s meaning.

    I’m with you on this Don. Copyright means that I have the ‘right’ to copy my own work, or not copy it – but the fact remains that the choice is up to me. It’s also my ‘right’ to let someone use it or not let someone use it – but the choice is still mine.

    It’s frustrating and discouraging to see people promote the “just go and take it” attitude. I am not a fan at all. Almost everyone has had a neighbor or friend that you tell they can borrow anything, anytime – just come over and get it. Then they end up borrowing it a little too long. Know what I mean? I see the same thing happening with Creative Commons.

  10. The fact that the decision making process is taken from me by someone else smacks of arrogance.
    “I know what’s good for you. Just sit down and let me decide who gets your stuff”, “I know it’s your work, but everybody loves it. You can’t keep it from people. You have no right to withhold art”.
    Makes your skin crawl doesn’t it?

    But if there’s no compensation, how do you create more?
    Art suppply houses would be forced to “donate” to patrons?
    They would then need government subsidies to stay afloat?
    Where does the gov get it’s money?
    Is the artwork still “free”??

    Too many questions?

  11. Will the same apply to software, somewhere in the future? If you have a right to it, just take it? It’s pretty much the same thing. I disagree with it wholeheartedly, thank you for the RANT article, it’s good to feel fired up about people misusing our images again.

    :)

  12. So, if I understand correctly you have taken somebody else’s emails and published them without their permission. This strengthens your argument how exactly?

    Re the creative commons stuff this must be just about the most paranoid rant that I’ve come across to date. It is optional.

    Re business model. The internet is a great free advertising tool and it is good to give something back. This can be done so that the artist benefits as will. It is not zero sum. We also have to operate in the world that we actually live in and not the one that we wish that we did.

    The energy that you’ve expended on this issue could have been used to take and market some great photographs..

    • READ.

      Obviously you didn’t read the post. I DO and DID HAVE PERMISSION, it is stated in the post as it was sent. What about this line is confusing to you?
      “She asked instead that she be able to send an email that would explain her position. Here is that email:”

      “This strengthens your argument how exactly?”

      Because I DID have permission and not sure what to make of the fact that you missed it.

      Of course it is optional. Lots of optional things may be discussed. Do what you want.
      Do I not have the ‘option’ to discuss it? Is it ‘off the table’ and ‘a done deal’?

      “The internet is a great free advertising tool and it is good to give something back. This can be done so that the artist benefits as will. It is not zero sum. We also have to operate in the world that we actually live in and not the one that we wish that we did.”

      Wow – what a unique proposition. Tell me, what did you pay to come on to this site? What do you think you are reading here? You think I am not ‘giving back’ with nearly 300 posts… without making any money? You think I should give more? How much?

      Sure, go ahead and explain that internet business model to me… I am all ears. (Gotta be kiddin’ me, man) You think I am not on board with the internet and giving back?

      So we have discovered that you know nothing about me and you can’t read the posts as written.

      “The energy that you’ve expended on this issue could have been used to take and market some great photographs..”

      Yep… but it made you upset enough to write, didn’t it.

      EDIT: I guess the Lessig shills are gonna come out of the woodwork today. Welcome. We mean you no harm.

  13. For extra fun with any of these we-want-we-take manifestos, go through them with search/replace and wherever they say “work” change it to “car” or “money” or “Visa card.” This quickly makes clear the level of hypocrisy involved:

    — “Gee, Larry, your car was just sitting right there in your driveway, and it seemed like too much bother to ask you, so I just hotwired it. That’s fine with you, right?”

    — “Gosh, Mr. Brin, all that money of yours was just sitting right there in the bank vault, and I needed to mix it with some of my own money so I could afford to create my artwork, so I took it. It’s called ‘appropriation’ and it’s all the rage in the most forward-thinking contemporary art circles. I definitely plan to acknowledge you and give you credit. So why are all these guys from the FBI making such a big deal?”

  14. Hey Don

    Another great article and bang on the money.

    It’s as you demonstrate, we as artists should have the right to CHOOSE when we want to give and when we want to control our own work. Your site is one of the most commercially grounding blogs I regularly read. At times I agree, at times my opinions differ even when I feel you are right but that I’ve gone another way, for exampleI put a small amount of very basic images onto microstock sites for example, (please don’t hate me). But even there we retain a strong element of control – we choose to post the image in exchange for a small reward. I can leave the image for all to buy, or withdraw it at any time. Control is retained.

    The idea that someone can simply TAKE from me and expect me to be cool with it has always felt like a kick in the teeth.

    The problem extents into the wedding market. I recently handed a bride the album and without any hesistation at all dhe informed me she’d “have to find a way to can the images to put on facebook”. Naturally I advised her this was not acceptable and if she wanted the images in digital format I would sell her a disk, which she declined. I am waiting to see those images appear online so I can have facebook remove them again, but this is not good for customer relations.

    I love the idea that your emailing friend there thinks that limited access to appropriate exisiting works (such as by not being able to find the original artist) will be more stifling to the creative industry then the idea of not paying artists for their work and just nicking it. There will always be artists, but there are more of them visable when the rewards are there to be reaped.

    TV would be a pretty boring affair if it was run by a bunch of folks working for free who simply ripped off ideas – advertising would be dead in the water without creatives feeding into the corporations that pay them for their ideas.

    Artists such as Barbera Kruger were renowned for “appropriating” other artists works and doing with them as they pleased – I always felt the same way, it was theft from the original artist, however it was used. A world of artists nicking parts of each others works will become pretty shoddy.

    Sorry for the ramble.

    • Good post.

      You are hereby given a pass on the dabble in MicroStock. ;-)

  15. I think you should organize a camp out on Mr. Lessig;s front lawn, where all can gather around a campfire and discuss his concept of ‘property’. Just argue that civil and governmental laws are overly burdensome, difficult to understand, and therefore inefficient, thus giving you the right to use his property as you see fit, say like for a campground, or a photo shoot.

    • Heh.

      Well, as much as it would be a blast, I do not advocate breaking the law.

      Civil disobedience I can get behind, but I will steadfastly stand beside my view of respecting private property.

      Wait… would there be a big ol’ bucket full of Corona’s?

      Hmmmm…..

  16. A very basic, crude look at this argument (non scientific) is that there’s a divide between those who make money off their art, those who don’t, and possibly another category of those who stand to make money of their art IF they use someone else’s.

    When I started in photography my pictures were free to the world, yeah, get ‘em out there! You want to use it in a newspaper!? Awesome That’s never happened before! But, slowly, I started getting into lighting, more expensive lenses, softboxes, and having children. So then I couldn’t express myself without subsidy – what to do? You want that picture? Will you give me $20? YES – EVEN BETTER! Now multiply that over hundreds of images and projects.

    If I didn’t have the RIGHT to sell my own work, if they had the RIGHT to take it, I wouldn’t be able to buy a new camera, or I would, but then my kid wouldn’t have diapers and they’d shit on the floor. I create photographs because I love to, and feel that I have to – this part I do for free. I SHOW my photographs to others to help support this conviction financially. If you take that away from me, that part of me is taken too.

    No, my soul isn’t my Canon 1DMKII, but if I can’t afford to use it, and you liked my images before tough shit right? now we’re both out of luck. If my form of artistic expression was punching people in the face, you’d certainly argue that I don’t have that right – to walk up and punch you in the face – so why do you get to punch me in the wallet?

    These are all generalizations, of course, but I can’t help but think there’s a group of people out there arguing for access but aren’t fiscally tied to it. A painter needs paint, a musician needs instruments, and a photographer needs a camera. None of it is free, though it can be acquired inexpensively, we don’t live on our art alone.

  17. I would like to point out a correlation here to software which some people don’t seem to be aware of. The CC license is voluntarily applied to a work, with the intention of allowing it’s use within a creative community. This is analogous to the GPL, BSD and Apache licenses (among many others) in the software community.

    @Peter said earlier: “Will the same apply to software, somewhere in the future? If you have a right to it, just take it?”

    Actually, Peter, yes it does, and that is what drives most of the internet today. The reason I brought up the aforementioned licenses, is that you benefit from them every day. This very site runs on a Fedora operating system (Linux kernel, GPL), runs the Apache webserver (Apache license), and WordPress (GPL). You are free to take this software, use it, and modify it as you see fit. The cutting edge technology that drives 99% of the top supercomputers in the world, is FREE; in both the monetary sense, and the right-to-use sense.

    This is the type of community collaboration that Creative Commons is trying to foster. I’m not saying that it will work in the world of art like it does in the world of software, but there is a working precedent that they are following. The CC license is also making inroads to things like academic research, allowing researchers to more easily access, and use the previous works to build upon, and make even greater discoveries.

    I don’t advocate the elimination of anyone’s right to control their own work, but CC is a *voluntary license*, and I see no harm it letting it coexists with traditional copyright.

  18. This quote is insane: “Copyright is the most inefficient property rights system known to man. And that’s why you have the right to take it and use it.” It is incorrect, the second half has nothing to do with the first. Even if the first part is true, that in no way gives you the right to ignore copyright. Lessig could have said something like, “You can get away with taking it and using it.” Both my version and his version of the second part of his statement mean similar things, mine is just more truthful to what is happening and more accuratetely fits the first part.

    So why don’t artists try this with music? Why is music such a protected art form, but anything you looks at has no value? People need to get their heads straight.

    I wonder if the idiot who didn’t ask, but simply told me they were using my shot from Flickr read this article? I am talking about an image watermarked with: “If you would like to use this image LEGALLY, purchase a licence here.” SHE POSTED MY SHOT ON HER BLOG WITH THAT WATERMARK! Then she told me she was using it as though it was her right and I should be grateful. How about asking? Yeah, I know, it is easier to ask forgivness than permission–not in my world.

    Tell you what Mr. Lessig, I love your home entertainment system. I mean it is incredible. I will go as far to say it is art. With that I am going to take your 64-inch, LED, flat panel, wide screen and use it in my own work of art–don’t worry, it will be displayed in my living room and I will give you credit. Your home security system is a very inneffective property rights system so that gives me the right to take and use your TV.

    Yeah, it’s all becoming clear now…

  19. Artists need to stand up for their rights. The scary part is that I’ve heard this argument from other “intelectuals” that teach at the collegiate level. That means they are actively propogating this drivel on young minds. I love the “free internet” comment. Really? My web designer doesn’t work for free, either does my graphic designer. They are professionals just like me and wouldn’t exists if they could make a living at their art. Keep preaching the good word Don!

    • What’s the frequency, Kenneth?

  20. You know those little pieces of green paper Art that the government prints? They are so amazingly popular that it actually takes tens of thousands of buildings to house them! And each of these buildings has it’s own security system meant to guard the Art, keeping the Art from the public, who are clearly the “Rightful Owners” of those little works of Art…Well I am will Mr Lessig on this! I say we should all go to the nearest Art House that keeps these little Artworks from society and grab a few fists full of them! Just take the Art because Art belongs to EVERYONE.
    But don’t forget to say “Thank you” as you walk out the door.
    You wouldn’t want to be Rude, would ya?

  21. When my work is stolen I call it ‘plagiarism’… when I plagiarize I call it ‘referencing’.

    • I think it is entirely possible to reference, quote, and discuss without violating copyright, don’t you?

  22. I think that if a commercial enterprise appropriates someone’s property they should be held accountable. On the other hand, an individual who considers themselves to be an ‘artist’ and yet feels compelled to steal another artists work to validate their own worth is merely pathetic.

  23. Matt staples – “TV would be a pretty boring affair if it was run by a bunch of folks working for free who simply ripped off ideas…”
    In fact Matt, as someone who works in TV I can tell you that you got it half right – Producers and Network execs definitely do not work for free, however, as far as the other part goes, well…
    Referencing back to my ‘referencing’ reference, one of the things that invariably happens during the initial ‘creative’ process is the director or producer, or both, gives a speech about his/her ‘unique creative vision’ and then hands everyone a list of films to watch so they see exactly what he means. It’s called ‘referencing’.

  24. What a wonderful concept, having a right to break a law just because I don’t agree with it. I’m sure that would work out just great.

    I honestly think we’ve entered the age of the narcissist.

  25. “She was quite adamant that stuff was to be used freely, but absolutely told me I could not use her tweets”

    This has to be the best thing I’ve read all day…..lol

  26. Take away copyright and you take away incentive to create. It\’s the same reason communism is a failed ideology. Because the incentive was removed the majority were quite simply unmotivated to do anything productive/creative to better themselves or their country/environment/etc.

    Anyone advocating the removal of an artists rights to their work for whatever reason is, I am sorry to say, an obvious moron who doesn’t give two hoots for art or creativeness in it’s many forms. (Yes, I used the M word) They are merely hiding behind their own lazy criminal natures and trying to justify their wicked sinful ways.

    Keep up the good fight!

  27. Like a town with no speed limit signs, and Copyright, as is it practiced today, is an extremely inefficient system. Requiring that each transaction must take place in person, with full involvement of both participants, slows creativity and commerce. Creative Commons is also imperfect, it does not allow a full range of “rights expression”.

    Creativity existed before copyright, creativity will continue to exist long after copyright.

    A final thought. When you sell a photograph are you compensating all the artists that were envolved in it’s creation? Are you compensating the designers of the models clothing? The chemists and designers to created the makeup? Are you compensating the architects of the buildings? Why should your art be protected and theirs is not?

    • “Requiring that each transaction must take place in person, with full involvement of both participants, slows creativity and commerce.”

      Maybe. But that should be the choice of the artist. This is my point – that with all the talk of “opt in” and “it is a choice” you really don’t see it that way. You simply see copyright as a problem.

      When I read Lessig’s article on Huffington Post he goes out of his way to make sure that everyone understands that copyright is an artists choice. But the minions don’t hear that… they hear that copyright sucks and it needs to go. No assimilation of CC… get outta the way, it’s our way or the highway.

      “Creative Commons is also imperfect, it does not allow a full range of “rights expression”. “

      OK. But you do not have the RIGHT to express what I had expressed. You may be given permission by me, but you are saying exactly the OPPOSITE of what the CC folks like Lessig are saying. He claims to support copyright. Your statement is pretty much get rid of it so you can have a full range of ‘expression’.

      “When you sell a photograph are you compensating all the artists that were envolved (sic) in it’s creation?”

      If their work is copyrighted and the copyright extends to them – then of course. I don’t steal music. I don’t steal items from other photographers. If I need a property or model or prop release they are gotten and paid for if necessary.

      And now the wheels come totally off the track:
      “Are you compensating the designers of the models clothing? The chemists and designers to created the makeup? Are you compensating the architects of the buildings? Why should your art be protected and theirs is not?”

      Ummm – no. Those things are not copyrighted to be compensated for in use. If they REQUIRED copyright protection and licensing, then, yes… they would be paid.

      Your knowledge of copyright is way too thin to be discussing it if you think that there is remuneration required for the chemists who make lycra.

      Seriously… all you do is make my point.

      CC people are not simply creating a ‘fun and simple way to share creative work’. They are bent on the destruction of the ability of an artist to protect their art.

      Now – you may call yourself an artist. But that doesn’t carry any weight when all you do is whine about not being able to use other people’s art work.

      Your argument FOR CC is almost as pathetic as it is terribly juvenile.

      • Dude… You asked me why I didn’t “respect” the “copyright” of the chemists who develop make up.

        And you wanted to be taken seriously?

        No.

  28. I am sorry, where did I say it should not be the choice of the artist? That wasn’t my point at all.

    Copyright in America is currently a very blunt instrument. It is setup to by default prevent others from creating derivative works. There is no way for the artist to express exactly how they may allow for such uses, other than a direct conversation. This limits the reach or scope of their work and it’s ability to participate fully in the public culture.

    “Your argument FOR CC is almost as pathetic as it is terribly juvenile.”

    You completely miss or willfully ignore my point. I don’t think my argument was particularly for The Creative Commons, in fact I think they are too limited and the licensing schemes provided have a rather socialist bent. The Creative Commons is great for an artist, if they so choose, to express how their works may be used in the public sphere. However, it does not provide enough detail for an artist to say, for example, “Don’t directly copy it, don’t pirate it, but you can transform it, “re-mix” it into a new work if you say where you got it from”, or “Do whatever you want for you own personal use, if you want use it on your website the price is $zxy.” The Creative Commons is drived from a software license (the GPL which made the internet possible, your website included), and unfortunately those roots show through.

    “Your knowledge of copyright is way too thin to be discussing it if you think that there is remuneration required for the chemists who make lycra.”

    Actually, no, you got that wrong there. My point was that there are many froms of artistic expression, which I might add you build upon to create your work, that do not have copyright protections. Clothing design, color palettes for make up, architecture, are some examples. Are these works any less creative, or artistic than your own? But they have been deemed too utilitarian, functional or it is too difficult to prevent copying, so they don’t get copyright protection. At some point in the future will photographic elements used for a functional purpose be consider in the same light?

    Also I think that in the coming years what we call “fair use” will expand greatly. If someone takes 1% of 10 movies, mixes it would 20% of a song and puts it up on youtube, does that really impact the artist negatively? Is there an economic loss? Will it be seen as the just part of the cost of being an artist who makes her works publicly available, commercially or not? We already have similar opinions about celebrities and their private lives. As soon as they become public figures their right to privacy is greatly diminished. Will an artist work be viewed in the same light once it’s available for public consumption?

    I didn’t make myself clear on one point. When I said “rights expression” I was borrowing a computer term, I was not speaking about artistic expression. While we can argue whether or not I can have the same expression that you can, that was my point. I was speaking about a way to publicly express under exactly what conditions an artist allows her work to be use. Also a way register a creative work, so that anyone who might run across that work, or a part of that work could contact the rights holder. For example if you license a photo to a website, there is no easy way for me to find you to also license that work. Or if it’s promotional material to use that work to further advertise your business.

    Finally, you make a lot of assumptions about both Lessig and myself. You don’t know me or my motives. :) I think both Mr. Lessig and myself like to think in “shoulds”. We like to think what could be possible, and then how we SHOULD manage that, and we try not to limit our selves by what is. Personally I think that an unmanageable system that cannot scale will fail and that will not be good for any artist.

    • You know a lot about copyright?

      And you ask me why my work should be respected when the “copyright” of a chemist or an architect isn’t?

      When their work is obviously respected through licensing, contract and employment law, and patent.

      You seem to think that because you want something you should be allowed to take it. To what ends does this hold?

      But thanks for clarifying.

      I make it and it’s yours.

      … Er, “should” be yours.

      Got it.

  29. Just wondering who you arguing with? It’s obviously not me. I never said that they had copyright protection, in fact I noted that they do not. Existing laws only protect the physical object. Fashion designers for example, are really only protected by trademark. When someone wants to steal their creative work, their designs, they are allowed to by law, so long as you don’t pretend they were created by the designer.

    It would be as if copyright only protected any physical photograph you sold, no on could steal that, but if someone wanted to create an exact duplicate they could, provided they didn’t claim it’s yours.

    My question was simple, why should your work be any different? Why is your artistic express more legally protected?

    • “…in fact I noted that they do not.”

      They most assuredly DO.
      Wrong!

      “Existing laws only protect the physical object. “
      Wrong again. Existing Laws most assuredly protect IP.
      Where in the world are you getting your education?

      “Fashion designers for example, are really only protected by trademark.”
      Which is a form of copy right as is a Patent.

      “When someone wants to steal their creative work, their designs, they are allowed to by law, so long as you don’t pretend they were created by the designer. “

      Wrong yet again! You even used the word “steal”. Are you not aware of the myriad of copyright infringement cases in fashion and design? Naww… prolly not, or you would simply NOT have made that statement.

      “It would be as if copyright only protected any physical photograph you sold, no on could steal that, but if someone wanted to create an exact duplicate they could, provided they didn’t claim it’s yours.”

      Ahhh… so yo are simply NOT aware of specific copyright challenges (right or wrong) that currently are in litigation or have been copyrighted. A view of a tree. A point of the bridge in San Francisco. And many more – copyrighted. Should the be is another question, but you are simply unaware of what you are speaking about.

      Which of course leads us to this incredibly silly question:
      “My question was simple, why should your work be any different?”

      It isn’t. It is IP which is protected by copyright. The fact that you want to TAKE the work I do and do with it what you want chills me, dude. I am not afraid, just chilled to think of the incredible arrogance and disregard of the creative process. Wow.

      “Why is your artistic express more legally protected?”

      It isn’t. As a matter of fact it is increasingly less so. Patents and Trademarks as well as Developmental Procedures and others seem to have way more power than we photographers.

      BTW… I live on earth.
      What color is the sky where you live?

  30. OH? Trademark is Copyright? Interesting. I assume you think patents are Copyright as well?

    Fashion Designers routinely loose those cases in the US, unless they also bring in Trademark, a patent, or the use of a work, usually an image, that is protected by Copyright. In fact, congress was working toward giving Fashion Design Copyright protections in 2009 with HR 2196 which failed in committee.

    One thing that should “chill” you is WHY fashion design isn’t granted Copyright protection. They use the “usefulness standard”. Saying that the primary function of the item is to be useful, not to be an artist expression. In the future will website or UI design be considered to be too “useful” for full copyright protection?

    Also… Did I say I wanted to take your work? No. Did I say that maybe copyright isn’t the correct way to manage your rights to your artistic works? Yes. Did I infer that Copyright, in it’s current form, isn’t optimal for managing digital rights? Yes.

    • Cool.

  31. Neato, dudio. :)

  32. Photography is my avocation, so I do this for my personal enjoyment, but I still retain complete copyrights to all of my images. I am so firm in this belief that I include a copyright indication in all of my images at the point of creation. I post my images to Flickr, and repeat the copyright declaration there. I want to be the one choosing if, when and how much I will be compensated for the use of any of my images, image by image. It someone finds that onerous, TS.

    I do notice that the apparent “I want it, so I can take it” attitude of Lessig et. al. does not acknowlege that there is a cost to producing “art”. I work in the IT department of a national university. I am continually amazed at how passionate many of the faculty members are about using open source (translation: free) software. They generally rail against the “greed” of the major software manufacturers. Somehow they cannot understand that there is a cost to producing and supporting this software, just as there is to producing art. Even bad art has a cost to it. It is interesting to note that some of the biggest corporate proponents of open source software (e.g., Oracle, IBM) do so only as a means to sell their patented (as you rightly described as another form of copyright) products.

    Last week I was at the EDUCAUSE annual conference, a meeting of higher education IT professionals. I had the privilege of talking with someone from Harvard’s neighbor institution, MIT. The conversation sheds some light on the type of environment that allowed the CC attitude to fester. MIT has a history of allowing total access to all of the content that the professors produce for their courses. So, you can right now ake a course online from MIT without registering, or paying for it. This is an attitude promulgated by the faculty, not the university. The faculty believe that the value of their work is not in the sylabus, reference materials, presentation slides, assignments, written discussions of the material, etc. that comprise the course. It is the physical presentation that they provide face to face. For that you have to pay.

    In these financially challenging times, the MIT administration sees this differently. It is another embodiment of the value of an MIT education, and as such is a potential revenue stream. Needless to say, a strong disagreemnt has ensued between the faculty and the university administration. The root of the problem is that the faculty does not get paid based on the courses they teach, and the quality and uniqueness of the content therein. They are paid via grants to research stuff (sorry about using technical terms). Teaching, in many cases, is a side venture. As a comparison, I can easily choose to give my images away, because it is not the primary provider of my sustenance. If it was my vocation (as it was many years ago), I would not give away my work so readily. [Don’t anyone worry. I only give away a small number of images, and those are done on my terms. If it is on their terms, they pay for it.]

    Thank you for being a vocal and thoughtful advocate for IP.

  33. What the heck happen to this this site? Where have all the “lighting essentials” gone? It’s more like a Ranting Essentials now….

    “This site is devoted to photography, and photographic lighting in specific. We want to feature items that photographers of all kinds will be interested in. Tutorials, online workshops, assignments, fun shoots, show-n-tell and more. We will present lighting information and lighting tools from DIY to the top-of-the-line Pro Gear. ”

    I soooo miss the days of tutorials, online workshops, assignments, fun shoots, and show-n-tell.

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