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Tuesday, February 28, 2006

Gripe, Gripe, Gripe

Okay, regarding this post, I admit maybe I...overstated.

The rules can never be fair. Society is just set up to the advantage of some kinds of workers and the disadvantage of others, and artists of all kinds are most often on the "disadvantage" end of that particular stick.

Yes, there are exceptions. But that's all they are. When I was a photographer I had clients stiff me enough times it wasn't even funny (and I can see humor in nearly everything). If you want to get professional photographers talking sometime, start a conversation about unusual and inventive ways a photographer can get stiffed by a client.

Gripe, gripe. But intellectual property is property too, and it's not for nothing that the phrase "starving artist" is a cliché. Van Gogh had to trade finished paintings for new tubes of paint—and the guy selling the paint was the one who was being generous. Don't try to tell me Van Gogh didn't do anything of value for society.

Photographers get ripped off all the time. Already. If you don't believe it, talk to a few. So when Congress wants working photographers to take it on the chin, we need to take it seriously. I understand the reasons for the new law. But I also know that it will be abused, and it will make it harder for "creatives" of all kinds to extract fair compensation for their labor. That's all.


Featured Comment (from the original post): Jake said, "As a student of International relations and Economics as well as an amateur photographer, I sincerely believe that we citizens of 1st world nations must protect intellectual property with every means available. Our Western economies are becoming more and more based upon intellectual property, while we allow other developing economies to provide the required labor.

"The Stanford University Library is mentioned in the proposal as wishing to make many orphaned works available. This is nice for them, however I doubt that the University itself would allow any of its own research to be tossed about on the internet if someone were to find an unaccredited copy of it and post it somewhere or produce a derivative work from it. They would sue and demand compensation. We should all have the same right.

"Our ideas are our own and our work is our own. You wouldn't want the guy in the next cubicle to turn in a report that YOU created with his own name on it. And that is the crux of this. If we chose not to publish it, then that is our choice and it should remain unpublished until after our death or as long as our estate keeps it unpublished. It is ours, and we should be able to defend and protect it as we wish."


Blogger imants said...

Wew! I am glad I have a double chin. Little Johnny in Australia will follw shrub and it will happen here

4:25 AM  
Anonymous Anonymous said...

Keep your emails from the company and see if you can get a lawyer who will represent you based on winning a huge award. You deserve it. Jan titusville

7:51 AM  
Anonymous Anonymous said...

Mike -- Please take your whining to heart and send me a copy of "The Empirical Photographer" I paid for in 2003.

8:14 AM  
Blogger Oliver Oberdorf said...

You might find it more effective if you email him with, say, your address and some details on the purchase.

8:48 AM  
Blogger Mike Johnston said...

I deserve that. My weak defense is that this blog is on behalf of photographers, and in defense of photographers. Standing up for them visibly is my obligation here. I don't make my living as a photographer any more, so it doesn't affect me personally all that much.

I understand the reasons for the new copyright law. I also know it will be abused, and that it will make it even more difficult than it already is for "creatives" of all kinds to extract decent compensation from the fruits of their labor. That's all.


9:24 AM  
Anonymous Anonymous said...

"Intellectual property is property too"

This is completely false. The term "intellectual property" is in fact one of the most egregiously bad misnomers in the English language, for it so leads to the kinds of misunderstandings as I quoted above. (The term "ephemeral rights" is preferable.)

Whilst ephemeral rights and property share some characteristics in their legal implementation, their justification is entirely different:

Property laws are put in place to give legal recognition to the moral concept of ownership which is already present in most cultures.

Ephemeral rights laws do not give legal recognition to anything, but instead have a stated goal of benefiting society and its cultural and scientific development. These laws achieve this through a form of state sponsorship of creatives -- but instead of direct grants, the state gives them a monopoly (limited in extent and duration) to utilise the idea/work, in order to spur more inventions and works to be created.

The end goal is to put more ideas and works in the public domain, so an overly strong implemention of ephemeral rights will infact work against the stated goal. Examples of an overly strong implementation can be a duration which is too long, the criminalisation of a lawful recipient of a work accessing it in an unauthorised way, and laws that lead to orphan works. All three of these problems are present in US copyright laws as they stand. The bill at hand seems to be an attempt at rectifying the last problem, in which case it is a good first step at making the laws adhere more closely to the stated goal.

These last few years we have seen the emergence of the various "open content" movements, first Free/Open Source software and the Electronic Frontier Foundation, later things like Creative Commons and Wikipedia. (OpenRAW is another one, which is relevant to photographers.) These represent a groundswell against the present regime of overly strong ephemeral rights laws, which has been created under the influence of big business lobbying and lawmakers who weren't being "on the ball", ie. they forgot the stated goal of these laws.

It is interesting to note that laissez fair capitalists are generally against ephemeral rights laws. At least they are intellectually honest -- they see that it is a form of subsidies. As for people who subscribe to the wrongheaded notion of "intellectual property", it reminds me of the phenomenon often seen in welfare societies where the longtime recipients of state aid end up with a sense of entitlement to that aid. It is important to avoid thinking like that.

The featured comment by "Jake" is so inane, it defies belief. But I guess there is a kind of disconnect between economics "corpo-think" people like him and idealists who would seek to have more sensible ephemeral rights laws. The very point of these laws is to allow more ideas and works to be spread around in society, and institutions like libraries and universities are important players in this. Libraries and some university environments have aligned themselves with the "open content" movements, and we can only hope that this is part of a larger trend where a new generation of professionals is being educated, who see how the present ephemeral rights regime works against its stated goal, and that a future consensus will influence lawmakers into remedying the situation.

When all is said and done, it's about the photograph, not the compensation or the control. If these were less, we would still do photography; the primary motivation is that we want our photographs to be seen. More and more people are relinquishing some of their rights in order to contribute to things like Wikipedia and open source software, because they want their works to be present and appreciated in society; if a work isn't, then it's all for naught.

(This comment became a bit longer than I had intended, I see now :)

2:09 PM  
Blogger Mike Johnston said...

Not long at all, and I thank you for taking the time. It's very eloquent, although I suspect I might mistrust the...ah...ideological vector from whence it cometh (g). Do you have any formal expertise in this area? You don't have to answer that.

But please, explain to me, from your point of view, why a man who makes a widget is free to sell the widget and the many who buys it owns it, but the same is not true of works of art.


3:52 PM  
Blogger Richard said...

Thanks for this followup on a complex issue.

Rick Keir

5:43 PM  
Anonymous Anonymous said...

OK, little technical point here.

"Our ideas are our own and our work is our own."

Sure, but of course you have never been able to copyright an idea. Only the expression of an idea has ever been priviledged with copyright. A photograph (or painting, etching, adverstisement, sculpture, or graffitti tag) is an expression that, in current law, has automatic copyright at creation. It has never been possible to envelope the notion of an "idea" within copyright protection.

I agree with Mike that the "orphan" thing is simply a window to steal everyone's work, and this problem is important. Better answers are needed.

And on a lighter note, given my reaction to "conceptual art" it almost makes the congress-critters who wrote the laws that do not allow copyright for ideas to have seemed...well, smart.


7:22 PM  
Blogger Dave New said...

For those that would like to spend some time delving into the topic of 'intellectual property', and why it is such a slippery beast to define (and corral), I would recommend the book, Code and Other Laws of Cyberspace, by Lawrence Lessig.

Mr. (Dr.?) Lessig has argued many cases of intellectual law, and is the instigator of the Creative Commons concept.

The book is not entirely easy to get through, although Lessig attempts to put it in more readable terms than the usual tome about what turns out to be a rather complex legal subject. In my opinion, it was worth the time (and the struggle).

9:02 PM  
Anonymous Anonymous said...

Mike: "But please, explain to me, from your point of view, why a man who makes a widget is free to sell the widget and the many who buys it owns it, but the same is not true of works of art."

I hope I understood your question correctly; the same is true of copies of works. But you need to distinguish between the objects, such as originals (where applicable) and copies, and the intangible asset called a work. IANAL but i believe copyright laws make that distinction. A copy is just like any other piece of physical property, so these were bought and sold even before copyright was invented in the 18th century.

9:54 AM  
Anonymous Anonymous said...

it's a new world.. I see that people come to realize this in more..say broad aspects of sociopolitical life but once the focal point becomes directly related with their everyday life... well it will take time for the octopus' arms to reach everywhere..
that thing about "1st world" countries transfering 'required' labor to all time 'developing' economies might seem perfectly intact in the limited-dimentional puzzle analysis of an economics student but it reminds me of H.G.Wells Eloi and Murlocks somehow.. maybe as mankind we should've never classified certain "intangible" things..
why feature a comment MJ? why? SMP was really an oasis for me as I was just starting to love photography.. now TOP tops my foto-favourites.. I really did not want my first entry to you to be a negative one..well somehow.. but I fully support your perspective on the "orphan amendment".. hope it counts..
please excuse me for the poor's my 2nd language.. not in anyway related but just for the artistic expression I love the word "ephemeral". don't you..

3:50 PM  

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