Art and Copyright

Very intersting read in the New York Times magazine from yesterday. How do we reconcile the market place with art making? How do we protect an individual's art with that of the community. And can artists work in a vacuum??

A quote from the article...

For centuries people have been speaking of talent and inspiration as gifts; Hyde’s basic argument was that this language must extend to the products of talent and inspiration too. Unlike a commodity, whose value begins to decline the moment it changes hands, an artwork gains in value from the act of being circulated—published, shown, written about, passed from generation to generation — from being, at its core, an offering.

I've long been uncomfortable with copyrights that last for seemingly ever...they only serve to protect the interests of large corporations and keep the work of individual artists who are long dead inaccessable. (Emily Dickinson's poems to name one example cited in this article.)

Your thoughts on the following link...

http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?pagewanted=1

Copyright creates a private right of ownership and control, which right has a monetary value depending on the desirability of the work in the eyes of potential consumers of that work. However, unlike owned tangible property, the value of intellectual property depends on its availability to the public, so this tension between private and public claims is innate. What we're really talking about here is how long is "long enough" to balance the interests of the creator in receiving the just rewards of his/her work; measured against some extralegal or moral "right" supposedly enjoyed by the public to access the work.

If I'm not mistaken, current copyright law protects works created for the creator's life plus 70 years. I can't recall if the original copyright owner or successors can renew this; I seem to remember that they cannot. (Yes, sloth prevents my looking it up!) This decision was arrived at via legislative action, so it at least has the virtue of representing some societal consensus in the matter.

My personal bias: seventy years post-mortem (if I have this correct) seems like a long time; but I wouldn't agree that such long terms protect "large corporations" per se. If the copyright is transferred to one's estate or to a family trust, then it becomes an asset to leave for the next generation. Wouldn't "large corporations" have come into possession of copyrights because at some point the copyright holder decided to sell his/her asset voluntarily---the copyright---to that corporation for valuable consideration?

This is what David Bowie did a few years ago, isn't it? He sold rights to his song catalog and its considerable revenue stream for some percent of its present value so that he could capitalize new projects. Or Michael Jackson, who bought up rights (publishing rights only?) to most of the Beatles song catalog, and subsequently had to sell it to cover his pedophile-defense debts, among others. Not sure who owns them now, but you can certainly still buy Beatles music. Only by allowing the music to be played or performed would that asset retain its value, so it's hard to see how the public is harmed.

Frankly, there's very little art that is going to stand the test of that kind of time, so it mostly doesn't matter. And art that is kept under lock and key for fear of its theft in the "marketplace" (like that doofus company who wouldn't agree to reproduction of a Dickinson poem---although if it were a book of criticism or analysis it might have qualified for a fair-use exception) will rapidly become a wasting asset.

MikeSeb said:

My personal bias: seventy years post-mortem (if I have this correct) seems like a long time; but I wouldn't agree that such long terms protect "large corporations" per se. If the copyright is transferred to one's estate or to a family trust, then it becomes an asset to leave for the next generation. Wouldn't "large corporations" have come into possession of copyrights because at some point the copyright holder decided to sell his/her asset voluntarily---the copyright---to that corporation for valuable consideration?

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The life + 70 was lobbied for by large corporations. Disney was one protecting the rights to Mickey, Donald, Minnie & goofy among others.
Is it excessive? The corporation lives into the future way beyond a lifespan.
Should they be able to protect Intellectual properties longer than one can protect tangibles via patent? I sure dunno but it does seem a little lopsided to me.

My concern, Suzanne, is not with ART, but with craft. A photographer rarely supports himself by selling prints, but by licensing images. To make a living, you have to own the right to market, or just possess, your own work.

Even commissioned work seldom - in itself - covers the real costs of being alive and being in business. That is why we license specific rights to a photograph: we hold all the other rights, and if it is a good image, we can sell its use many times.... just like a piece of music.

Today, this doesn't make sense to most folks because of the glut of images, most of them having no commercial value. But we aren't talking about a blurry snapshot on Flickr, we're talking about a special image (think "Moonrise") that DOES have commercial potential.

OR, we're talking about an image that could have recurrent use by a client. The idea is that you were hired to make an image to be used once, and the client chooses to use it again, and again, and then to trademark it.

Again, think about music as a model. You hear a tune on the radio, and want to use it for your corporate identity. Obviously, you have to negotiate the rights from the copyright holder. Obviously, you pay whenever it is used. The reason is that had it not be composed, it would not exist, and you could not use it. Without copyright, photographers who make successful images would be in competition with their own pictures. Even if you had, I don't know, some Billboard artist write a Happy Birthday song for one of your boys. You hand over the cash, you get a recording, and you can play it every day for the rest of your life. But when it sells a million copies for the composer, you don't get a dime. He held the rights.

Like Me vs The Bride from Hell. Sees the proofs, claims the negatives. Why ? They are pictures of HER !!!! Wrong. Even attorneys don't really get this.

No shit, there I was, when a Bride From Hell sued me because I wouldn't hand over the negs. My own attorney offered, signed contract in hand, to make a federal case out of it, her shyster had second thoughts, and that was that. Well, they DID have to pay something for being stupid. Good old copyright, protecting your right to possess and do what you want to do with the work that you create.

Say somebody sees a picture he likes in the APUG Gallery. OK, it is just a little bitty jpg, can't make a billboard from that. But let's say it is a very clever and interesting image, and the villain snags your image, copyrights it in his name, hires a shooter who produces in a studio with a big DIGITAL camera (let's really make him a villain, OK ?) and it runs in Vanity Fair selling something pricey for a couple years. Stole your work they did. Not only that... but once they had the rights to CONTROL the use of the image, they have every right to come here and demand you take the picture down. Even if it is your picture, your baby, on your back porch, you could never be allowed to show the thing in public,because they stole it from you because you didn't copyright the thing.

It seems a little farfetched, but if you ever have had to fight for the right s to an image stolen from you, or fight for the pay for an image you made, you might see things differently.

Value for an image is transient. It may become valuable, it may not. But it is YOUR work, and you deserve to control how it will be used.

As for 70 years, well, Ansel never made much money until he had one foot in the grave,and damned near killed himself printing when a normal person would have had a little bit of a rest. Had to sell more prints, because he wanted to see his wife and kids provided for, his legacy. Remind me what is wrong with that ? So, I can't go out and market Half Dome lunch boxes. Ansel's grandkids can, and, between the two of us I'm glad.

Thank you both for your thoughts... and I don't mean to sound like I am against copyrighting one's work, and protecting it. I am. I am alive, and still making it... it's my work, and I don't want it stolen.

Now, I think Dickinson's poems, at this point, ought to be in the public domain. Whether my work... or the work of any other APUGger will stand the test of time remains to be seen, and beside the point. When I've been dead (after, hopefully, a good long while) my children will still be able to hold the copyrights of my work if there is any commercial value. Then, after that, I'd like to see it in the public domain. (At this point, to be frank... Mickey Mouse should probably be in the public domain). It seems to me, and perhaps I'm wrong, but long held copyrights, with a few exceptions... like Ansel Adams, tend to protect publishers, and not necessarily the children or grand children of an artist/writer/whatever. And of course, Disney, who seem to be the biggest beneficiary of long held copyright.

Ok, so my next thought, if I may, and what I think the article is getting at is... what if we remove the question of money, and the market place of commodities from the ideas behind making and creating art, whether a photograph, a poem. If I buy a car, its value goes down with time. Quickly at first, I would say. If I make a photograph, it's value... whether monetary or not, goes up with the passage of time. (The pictures my great grandfather made about a hundred years ago are very valuable to me, if not monetarily.) The idea of them... and other family photos made from other famiies I don't know are of value to me... as a photographer. I'm influenced by them. They are an extraordinary gift.

Can a community of artists benefit when obscure works end up under lock and key? Don't artists and writers benefit from something of a free exchange of ideas... this "gift economy" that is described in the article.

I'm not sure I have the answers, but these are intersting questions... and as I have been grappling lately with why I persist in an endeavor which has garnered little profit for me, do I persist?

SuzanneR said:

I'm not sure I have the answers, but these are intersting questions... and as I have been grappling lately with why I persist in an endeavor which has garnered little profit for me, do I persist?

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... Suzanne, of course you do. Because every day when you wake up you have this urge to create something beautiful, something memorable, which your work is - and then some!

Whether it's for you or someone else, that doesn't matter. But your creations bring intrigue, interest and joy to many people and we appreciate.



Oh... and because you just can't help it...

don't artists and writers benefit from something of a free exchange of ideas

but it has seemed the biggest gift of the internet has been to take creators property under the
scam that it is for common cause

the battle to steal work and ideas by microsoft, and everybody else, is rampant

if i want to share ideas, i can go over to schwab's and help him rake leaves;
call apug pals,
or go to a bar

but i'm not going to post my best images online

oh, and what Nicole said.

SuzanneR said:

Thank you both for your thoughts... and I don't mean to sound like I am against copyrighting one's work, and protecting it. I am. I am alive, and still making it... it's my work, and I don't want it stolen.

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No worries, I took you at your intended meaning.

It seems to me, and perhaps I'm wrong, but long held copyrights, with a few exceptions... like Ansel Adams, tend to protect publishers, and not necessarily the children or grand children of an artist/writer/whatever.
And of course, Disney, who seem to be the biggest beneficiary of long held copyright....

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Rereading your original post, this seems to be the central thrust of your concern--no? I think the solution is, frankly, for artists to learn to better manage their business matters. Sounds like it's more a matter of proper estate planning than a copyright issue per se.

If it's possible for an artist to place his/her work in a trust, or in some other perpetual legal structure that owns the copyright, then would this be the best way to ensure that the heirs to that trust receive the benefit of the work after the artist is gone--assuming that doing so would somehow add time to the exclusivity period? For instance, doesn't the Ansel Adams publishing trust manage the licensure and reproduction of his work? Does it mean the copyright clock never runs out as long as the Trust continues? Agreed, this seems like an abuse of the copyright law; and from what I recall of the Founders' thoughts on copyright, perpetuity was never their intention.

As for Mickey and Minnie--they may be registered trademarks of Disney and enjoy legal protection by that means, rather than through copyright; as you know, the two are quite different animals. A trademark persists as long as does the entity who owns it; not so for copyright, unless copyright law excepts corporate owners from the finite lifespan provisions. Again, I'm speculating; maybe someone will chime in with real information.

Can a community of artists benefit when obscure works end up under lock and key? Don't artists and writers benefit from something of a free exchange of ideas... this "gift economy" that is described in the article.

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Guess it depends on your perspective. The artist benefits from enjoying the exclusive fruit of his/her labors. I'd place the private-property rights of the artist to his work above a theoretical right (nonexistent in law or morality) of the public to enjoy it without recompense. A gift should be voluntary.

I have been grappling lately with why I persist in an endeavor which has garnered little profit for me, do I persist?

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For the same reason we all do, Suzanne: you have to, you can't not do it. Very simple. They'll have to pry your camera, like mine, from your cold dead hand.

SuzanneR said:

I've long been uncomfortable with copyrights that last for seemingly ever...they only serve to protect the interests of large corporations and keep the work of individual artists who are long dead inaccessable. (Emily Dickinson's poems to name one example cited in this article.)

Your thoughts on the following link...

http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?pagewanted=1

Click to expand...

If you're concerned with large corporations, don't worry about copyright persisting too long, worry more about copyright being strangled at birth. The most egregrious examples are the black blues and R&B artists of the decades before at least the 70s, paid a flat session fee to play on million-selling hits, and since then receiving not one cent, ditto film actors in many cases (the actors who made the British "Carry On" series of low comedies got £500 to £600 per film, no residuals, not a red cent since), ditto radio and TV actors (in Britain, union rules in the 60s and 70s forbade re-runs of shows more than 2 years old, so cretins at the networks wiped the majority of tapes of comedy shows, artists were not able to claim copyright and preserve their work).

Believe me, artists need more copyright protection, not less, although I would say that extending the copyright period beyond 70 years is less of a priority than enforcing the so-called "droit de suite", where artists get a slice of the proceeeds when works which they ahve sold are sold on again.

MikeSeb said:

No worries, I took you at your intended meaning.
As for Mickey and Minnie--they may be registered trademarks of Disney and enjoy legal protection by that means, rather than through copyright; as you know, the two are quite different animals. A trademark persists as long as does the entity who owns it; not so for copyright, unless copyright law excepts corporate owners from the finite lifespan provisions. Again, I'm speculating; maybe someone will chime in with real information.
.

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Shamefully, an act of congress extended Disney's Copyright on these creatures. I think they should extend my copyright, too. Damn the bastards!

bowzart said:

Shamefully, an act of congress extended Disney's Copyright on these creatures. I think they should extend my copyright, too. Damn the bastards!

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"Shameful" AND "Congress" would be a boolean search result if Google cataloged the foolish and feckless.

df cardwell said:

don't artists and writers benefit from something of a free exchange of ideas

but it has seemed the biggest gift of the internet has been to take creators property under the
scam that it is for common cause

the battle to steal work and ideas by microsoft, and everybody else, is rampant

if i want to share ideas, i can go over to schwab's and help him rake leaves;
call apug pals,
or go to a bar

but i'm not going to post my best images online

oh, and what Nicole said.

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Is it? I've come to know the work of many photographers... you, Nicole, Mike Seb's work via the internet. I'm happy about that. Of course, there is the downside... I know.

And that bar you go to is a thousand miles from me or so... and I'm not even sure how far Nicole's back yard is... but it's far!! The internet has brought her closer.

And yes... there is a downside. Stealing ideas for a "common cause" when really, it's a corporate cause is rife I'd agree. That said... I can't say I've not been influenced by Nicole's work, but I certainly hope I'm not stealing her ideas. But there is a canon of work out there... the whole history of art, in fact. Don't we expand on it with each generation... don't we add to it?

I think I'm grappling with this a little, because I'm not motivated by making money in my personal work, so the NYT article held some resonance. Yes... I'd like to sell some of my work, then perhaps, I can find the funds to make more, but if I can't... I won't stop making the pictures. (I might stop making the really big prints... actually have for a bit, now!) In that sense it's freely given. I want to share it, it feels more complete once it's been seen. I don't expect every viewer to buy it, but I don't want to hide it from them either.

I'm going around in circles...

Where's that bar, Don??

MikeSeb said:

"Shameful" AND "Congress" would be a boolean search result if Google cataloged the foolish and feckless.

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hehehe....

Who owns Emily Dickinson poems now - Google? Just because they can copy and upload stuff doesnt mean they own it. Then again, maybe it DOES...

paulie

Harvard University

i can only comment on australian law - but its likely that america and the uk are similar trade mark patents and copyright are very different beasts.

there is an over lap between copyright and trademark but the rights and remedies of the holder may be different.

In australia copyright is defined as the right to commercially exploit ones artistic endevors. Its a personal right but don't forget that at law a company is a legal "person".

Copy right is essentially a contractual right you, as others have pointed out, can sell, buy it or waive in the same way as any other property right. As some one starting out in commercial photography (but who has another profession) i have set up a family trust that allows me to trade independently of my 9 to 5 job and not pay additional tax. I could if i wished assign my copyright to the trust if i choose to.

For me the question is not whether the copyright period is excessive, the longer the better in my view, but why am i not entitled to profit from my labours when someone else sells my work at a profit at a latter date.

df cardwell said:

Say somebody sees a picture he likes in the APUG Gallery. OK, it is just a little bitty jpg, can't make a billboard from that. But let's say it is a very clever and interesting image, and the villain snags your image, copyrights it in his name, hires a shooter who produces in a studio with a big DIGITAL camera (let's really make him a villain, OK ?) and it runs in Vanity Fair selling something pricey for a couple years. Stole your work they did. Not only that... but once they had the rights to CONTROL the use of the image, they have every right to come here and demand you take the picture down. Even if it is your picture, your baby, on your back porch, you could never be allowed to show the thing in public,because they stole it from you because you didn't copyright the thing.

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Here law about authors rights say author get all rigts at moment of creating a piece, and (s)he don't have to get copyrights or any other institutional recognition of those rights. Sipmly by making a piece you have author rights of that piece. For your life and 70 (or 90) years after.

Author can not resign of rights over its piece. Author can give or sell same rights to others, but can not lose righs. Ever, and under no circumstances.

Saying that I do and don't understand needs of copyrights if already have author rights. That means I make photograph, and must to go to some institution and to pay to get paper in which will be written I made that photograph, and thus have authors righs over that photograph?

Boy, I would LOVE to be someone important in that institution, they must be loaded with mney...

I wonder what woud be of photography if French government didn't at that time bought rights over photographic processes from Daguerre's and Niece's heirs and give them freely to the humanity to be used and improved. That is, if famillies Daguerre and Neice still have authors and copyright over photographic processes in their possesion, what would photography looked today? Just wonder.

Saying that I can't imagine anyone today, government or else, and especially corporation, to pay authors rights to some or if it is their own invention, to give it to the world free of charge.

The misleading term `intellectual property' has been used in this thread. Please let me point you to an excellent article by Richard Stallman, which explains why people should renounce it.

I don't see why copyright shouldn't last forever. The fact that an artwork is copyright doesn't stop it from influencing and inspiring future generations; but it may reduce the likelihood that someone else will profit unfairly from the artist's work. And why should the artist's descendants have their assets appropriated at some arbitrary time in the future?

Surely Emily Dickinson's poetry is widely available in print. Just because we're used to finding things on the internet doesn't mean we have an automatic right to have things there. It's up to copyright owner to decide whether it should be available on-line.

The real iniquity as far as I'm concerned is the US requirement to register copyright of your creative work. How can this be fair? Thankfully in the UK copyright is an automatic right regardless of whether it's formally asserted or not.

Here's an afterthought which is only really relevant if you want to make money from photography...

Photographers worrying about copyright of their work is a common theme on photography sites. But I believe this concern is blown out of all proportion and ultimately is self-defeating.

Moonrise is only Moonrise for two reasons: firstly because it's a great photograph, and secondly because it was made by Ansell Adams. You may make great photographs too, but if no-one knows who you are then you're not going to make a Moonrise.

Google your name, or the title of your best print, or the subject you work with, or your medium. Do you appear on the first page? If you don't, then I'm sorry to say this but you'll never make a Moonrise.

Photography is a visual medium and if people can't see your work then you don't exist. So you have to make sure people can see your work - and that means having a website with your best work presented to the best of your abilities. Sure someone may rip off some images, but more people are going to see your work than rip it off. And the more people who see your work, the more likely it is that you'll connect with someone who likes your work, and the more likely it is that someone will buy your work.

So stop worrying about copyright and get out there.


One last thought...

The world has changed. Nowadays people expect free content: royalty-free stock libraries, citizen journalists, and the bride's friend who has a D9000. Whether this 'free-for-me' attitude is right or wrong is immaterial - it exists so you have to get used to it. If you expect to make a living in a world where your customers want free content then you'd better find a business model that gives them free content. And if you can't find this business model then you'd better start looking for a different job.

We still use plenty of stone, but there aren't many stone masons left.

Ian

In the Spirit of Boxing Day:

The REASON you register the work you create (even though you have the copyright when you push the button)
is to have PROOF. Whether it is nice or not, the world is full of grasping people who believe that if you can't defend your work, they have the right to take it away from you.

Now, let's say Chanel offers you a large box of banknotes to use one or two of your images for their advertising.
Lovely, yes ? BUT they just might want to see that you actually own the rights to those images.

Now, if you are never going to make an image that will earn you hundreds of thousands of pounds over the course of your career, than you feel free to go the royalty free route. Pity. You have the talent to earn a nice living if you apply yourself.

And while it IS true that there aren't many stone masons left, the ones I know make a very nice living.

.

My 'proof' is in the negatives and the model release forms - but I forget sometimes how litigous American society is. (Just for the record that's not intended as being anti-American.)

Now don't get me wrong - I'm not advocating royalty free at all - I'm just using it as an example of how the world has changed.

People expect free content, and very often they're satisfied with poor quality just so long as it's free. Madonna and the movie studios have the same issue as photograhers.

No business can survive if its customers aren't willing to pay for its products, so when customers start demanding its product for free (or for nominal charges), the business must change or it will die.

Just like the stone masons who've survived, the photographers who are making money in 10 years time will be those who've found a business model which connects their customers with products they are prepared to pay for. And this model will have to differentiate their business from the millions of people out there who are happy to give their time, pictures, and copyright away for free. I expect that means finding different customers as well as different products.

Ian Leake said:

One last thought...

The world has changed. Nowadays people expect free content: royalty-free stock libraries, citizen journalists, and the bride's friend who has a D9000. Whether this 'free-for-me' attitude is right or wrong is immaterial - it exists so you have to get used to it. If you expect to make a living in a world where your customers want free content then you'd better find a business model that gives them free content. And if you can't find this business model then you'd better start looking for a different job.

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A different market (an Analog/store front market vs. Digital/internet market) or different way of marketing (say through galleries) might be a another way to say this.

Your statement does highlight the biggest failing for Artists of digital works and the culture of the web, the output is expected free.

Well, I don't really care what people want if they are not willing to pay. Why should I?

The only thing I hand out free is brochures or images with my contact info built in.

markbarendt said:

The only thing I hand out free is brochures or images with my contact info built in.

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A lot of businesses spend lots of money creating free content for their customers and potential customers. It's called 'marketing' - and they don't give up copyright along the way.