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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I am in love with light.

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 Amherst Media (available on Amazon and Barnes & Noble: keyword 'don giannatti'. Lighting Essentials is my flagship blog and ezine with a slightly different slant than most photography related blogs. If you are interested in becoming a better photographer, check out www.project52.org. Thanks for visiting.

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