Category: Copyright

Photographer Learns the “Value” of Exposure

We all know the cliche, right?  Free distribution made possible by Internet technology gives the artist exposure that will lead to otherwise hidden rewards; and so restricting use through ownership is anathema to the opportunity provided by social media.  Bullshit.  A friend just shared what may be the perfect real-life anecdote that gives lie to the culture of permissionlessness.  Photographer Rachel Scroggins tells a story on her blog that so clearly demonstrates what happens in a society in which the creator of a work can disappear amid the frenzy of sharing.

In September of 2013, Scroggins explains that she took a photo of supermodel Karlie Kloss in the act of taking a selfie with her smart phone.  Scroggins showed the photo to Kloss, who proceeded to share the image on Instagam without permission or a photo credit.  I’m sure Kloss was not being deliberately unkind but was merely acting like a typical citizen in a time when the very idea of permission or credit has been culturally bred out of everyone’s consciousness.  This degradation in the social contract is commonplace, but examples like this one don’t come along too often.  Because when a supermodel shares a photo, it has a tendency to go kinda viral.

As Scroggins watched her unattributed image rack up about fourteen thousand views, she could only imagine the potential good it might have done her had Kloss simply understood how essential that credit is.  Karlie Kloss did eventually apologize, but the image subsequently began to appear uncredited on numerous mainstream fashion websites all over the world.  Thus, Scroggins proceeded to spend time and energy in that new, thankless and unpaid second job of the digital-age artist — chasing down infringers of her works.  In some cases, she received apologies and compensation from the publications; but in many cases, she’s received little more than brush-offs and some reluctant acquiensce to her takedown requests.  And she’s still chasing the photo around the web, “All because, as she says, “Karlie Kloss used my photograph and neglected to credit me properly.”

So, on behalf of all the artists like Rachel Scroggins, spending countless hours pursuing thousands or millions of casual, unattributed and permissionless uses through cyberspace, I have to say to y’all who claim the “exposure” is worth abdicating copyright, that you are so completely full of shit.  Because while you — and I’m looking at you Mike Masnick — extoll the virtues of free, mass distribution for artists and creators, you simultaneously pimp out messages into the heads of beautiful users everywhere that the individual who made that work they’re “sharing” simply doesn’t exist anymore.  Pity the same phenomenon has yet to fully manifest among those of you promoting lame ideas about copyright.

Westboro Baptists Infringe to Offend

In at least a few posts advocating for the right of the copyright holder to control the use of works for reasons other than money, I have raised hypothetical scenarios in which particularly odious entities make use of works in ways that are uniquely offensive to the soul of the original.  Most recently, I employed such hypotheticals on the subject of compulsory licenses, which would compel music rights holders, for instance, to allow any use of their works as long as the use is compensated.  I argued that this strips the creator of one of the most basic rights of copyright, which is the right to choose the manner in which his/her expression is used, except for of the types of uses typically protected by the doctrine of Fair Use.  So, along comes a real-life example of the dark side of remix culture and the kind of cultural gaffes we might get in a world where all works are fair game.

It looks like members of the Westboro Baptist Church cobbled together the six functioning brain cells in the group and scrawled out some clever new lyrics to accompany Paul McCartney’s famous melody “Hey Jude.”  For your listening and viewing pleasure (or nausea), I offer  “Hey Jews,” sung by the men, women and, yes, children of what I assume to be the Westboro Baptist Church choir.  Drawing upon the favorite theme of killing their savior, the Wesboro Baptist version of this song, originally composed as a ballad of avuncular tenderness for young Julian Lennon, is an anti-semitic screed I suspect most people would ignore, except of course that guys like me will call attention to it.  So, why am I doing that?

Because the video in all its ignorant glory serves up some interesting gefilte fish for thought, if you will.  First, I have no idea whether or not Sony/ATV will take any action against the WBC for infringement, although they could; and if they did, I don’t think a judge would rule this video to be a fair use.  This has nothing to do with its offensiveness but rather with the fact that the revised version does not lampoon the original work itself.  Simply taking a known song and changing the words does not make the new work a parody of the original.  For instance, Weird Al’s “Word Crimes,” which is a fantastic new hit based on Robin Thicke’s “Blurred Lines” is not a parody of that song.  So, why does Al get to use it?  Because he got permission and paid for the use, the permission being the more socially important of those two steps.

Sony/ATV may not sue simply because the Wesboro Baptist Church is so universally reviled and ignored that they may just let the infringement go rather than make a case out of it. But alter the situation just a bit, and the scenario might look very different.  Imagine the rights holder is still the author of the music and not as galacticly famous as Sir Paul, and the offensive derivative is made and promoted by a more prominent group.  Does that skew your idea as to how much power the rights holder should retain to prevent such a use?  Some will call this song/video free speech, but I say free speech gives the Wesboro Baptists the right to write, record, and publish their own offensive idiot song, but not a right to use someone else’s work as they see fit.  Because in a sense these neanderthals are speaking with just a little bit of Paul McCartney’s voice, never mind desecrating the very personal reason he created the work in the first place.

I understand this song’s influence in the world will be zero.  Likewise, neither the original work nor its author will be harmed by this association such that anyone is going to assume McCartney endorses the Westboro Baptists.  But change the players in an otherwise similar story, and harm is possible.  Hence, preserving the copyright holder’s choice to sanction, prevent, or ignore certain uses is actually more important in the digital age than it ever was.  Because now any idiot can broadcast, and any idiot will.

Fresh Scholarship on Copyright

For quite some time, too long perhaps, a considerable amount of academic scholarship has trended toward focus on copyright’s negative effects, or at least doubt its positive effects, without adequate analysis of the creative process itself.  When viewing the market, and especially creators, many academic views I have encountered appear to look solely at finished works, how the market interacts with those works, and then to interpolate from these data the creative process that generated the works in the first place.  As such, many attempts to reinvestigate copyright’s role in incentivizing production are incomplete. To quote from a new academic article that will be published in the March 2015 issue of the Harvard Law Review, “Copyright’s incentives/access debate has done a good job recognizing the risks. Yet it has all but ignored the rewards.”

At last, a legal scholar has emerged who has taken a scientific approach to examine the creative process in an effort to better understand copyright’s generative benefits.  Joseph P. Fishman, Climenko Fellow & Lecturer at Harvard Law School, is the first academic to my knowledge who has attempted to express in analytical terms what I believe most artists understand intuitively — that constraint is always part of the creative process, and that copyright’s constraints very likely produce a greater diversity of works than we would see in a market without such constraints.

In his paper, Fishman refutes the often misguided assumption that creative people require “absolute freedom” in order to be more creative.  Artists and creative producers understand that a process without constraints (or boundaries) is not a process at all but a road to madness or failure or both.  A novelist does not arbitrarily pick themes and plot devices and language as she goes, but makes firm choices and either sticks to them or changes them wholesale in the book in order to produce a story that her readers will want to follow.  Most of us are familiar with the Michelangelo-attributed quote about sculpting being the act of “cutting away everything that is not the angel.”  Fishman has quantified that metaphor in his paper titled Creating Around Copyright.

The title refers to a well-established and accepted benefit of patent law that “working around” patents generates the kind of diversity of useful inventions that benefit society exactly as intended.  Fishman’s thesis asks why this same working around principle is not applied to legal scholarship on the subject of copyright.  Why would working around copyright not be as diversely generative as working around patents?  Experientially, creators will tell you that it is.  And now Mr. Fishman has applied legal theory that corresponds with that experience.

Last July, I wrote this post describing how the creative process is always about working around obstacles and that obstacles — legal, financial, physical, logistical, and internal — are often the most important catalysts to producing unanticipated, creative solutions that themselves become the signature elements that give a work its unique or masterful qualities.  Shortly after publishing that piece, Fishman contacted me, still in the early stages of writing his paper.  We spoke for a while, and his article does cite that October post, but what I did not know was that he would produce such a thorough and scientifically-based explanation of what artists throughout history have consistently described anecdotally.

Citing extensive psychological research into the creative process, Fishman demonstrates that there is an optimal balance to be maintained between constraint and freedom.  Too much constraint fails to produce creative diversity, but so does too little constraint.  In order to view the creative process as a science, Fishman rightly describes artistic work as an exercise in problem solving no different from the activities of a scientist or technologist.  We tend to talk about the arts in emotional or poetic terms, but Fishman is right that the process is entirely analogous to problem identification and solution.  As such, the psychological experiments to which Fishman refers throughout his article suggest that a purely “open” process free of constraints produces less creative variation than a process with the right amount and right types of constraints.

Fishman contrasts various experiments in constraint with the path-of-least-resistance approach (i.e. freeform) to creative development; and in a copyright context, a path of least resistance might be the ability, for instance, to riff off any existing creative works without the permission of rights holders.  But Fishman explains, “Following this path of least resistance inhibits originality, and hence creativity, by launching a mimetic approach to problem solving.”  To translate that into a contemporary example:  the world would be more boring with a hundred simultaneously available Sherlock Holmes derivatives than with, say, one or two of those while creators are forced to invent other works.

One analogy that came to mind while reading Fishman’s article was child-raising.  You’re probably familiar either with the concept or the unfortunate experience of the young child whose parents allow him to “express himself” insofar as he is given few if any boundaries.  Those of us who have witnessed this catastrophe in action know that the unbounded child is not only a brat, but is a thoroughly unoriginal brat incapable of producing creative solutions, even if his parents might see genius in his mischief.  But the child who is given appropriate boundaries balanced with appropriate freedoms will produce volumes of creative work though play acting, building, arts and crafts, etc.  As engaged parents, we constantly try to find that balance between constraint and freedom that produces a person capable of creative (i.e. original) problem-solving skills, but we know for sure that the child without any constraints is a recipe for trouble.  It seems to me that Fishman is seeking an analogous balance with copyright law.

The article even goes so far as to create a taxonomy of constraints, identifying seven properties for examination with regard to their generative or restrictive effects.  With the first of these properties, Source, he discusses chosen vs imposed constraints, which is an interesting and important division to recognize.  An artist or group of artists will embark on a project with myriad imposed constraints (time and money always at the top of the list), and will need to pick a number of chosen constraints that actually give shape, texture, and voice to the finished product.  I would add to this taxonomy a third subcategory under Source that most artists probably understand, and this would be innate or internal constraints.   In fact, any artist who looks first at external constraints and not at internal ones may have to consider the possibility that his biggest barrier is that he is not in fact an artist.

 When I was still in college, I spent some time thinking about various artistic media in terms of their constraints, operating from the premise that these boundaries are in fact what define each medium and are, therefore, the source of their power to affect us as we want art to do. After all, when one attends a class in a medium, say photography, discussion begins with the boundaries of the medium, even though we don’t usually think of it that way.  New photo students will begin to consider composition, light, two-dimensionality, color, all of which are boundaries that define a thing we call a photograph as something distinct from, say, looking at the subject of that photograph in real life.  Or to put it another way, a constraint on a photograph is that it cannot make a sound, but a power that it has is that it can make the viewer perceive sound without hearing it and thus offer an experience that re-contextualizes “real life,” which is what art is supposed to do.

This contemplation of boundaries is particularly relevant, I believe, to filmmakers because film more than any other medium trades on a gestalt that what is being experienced is “real.”  Even the most fantastic on-screen world in a narrative film tends to draw viewers into an immersive experience that is more visceral than with other media.  Additionally, the hundreds of dynamic variables, choices, and obstacles that are constantly being managed in order to complete a motion picture ought to make filmmakers particularly cognizant of the generative power of constraint.  The line between an imposed workaround and a brilliant creative choice is so blurry as to be absurd.

In his article, Fishman mentions standup comedy, which is a medium that probably deserves more study than it gets in this context. He writes,  “In stand-up comedy, for instance, the reputational cost of appropriating others’ jokes stimulates continued innovation in developing new ones.”  What’s interesting about that world is that comedians don’t need copyright per se to protect their jokes because it is an unspoken rule that stealing someone else’s material will very quickly ostracize the thief from both fans and peers.  Some might view this as evidence of copyright’s irrelevance, but to Fishman’s point, it should be viewed as an endorsement of constraint’s generative capacity.  The accepted boundaries among comedians force them to work harder to find their own voices, which adds to the diversity of comedy rather than homogenize the medium.

It is heartening to see a legal scholar make the effort to examine the pros and cons of copyright from a creative-process perspective.  It is also about time.  I sincerely hope others in Mr. Fishman’s field take note.

See Working Around Copyright by Joseph P. Fishman here.