When I speak to photographers about copyright, I often use a variation of William Patry’s metaphor from his book Moral Panics and the Copyright Wars:
Picture a copyright battlefield. On the right-side are the traditional Copyright aggregators – publishers, record companies, and the licensing monoliths – including the artists that they represent. Beside them are the trade organizations that represent them – ASMP included. On the left-side are the libraries, nonprofits, technology companies and free culture advocates – many of us artists feel comfortable here as well.
Most of the time, artists are stuck in the middle of this battlefield getting pummeled by shrapnel and the falling arrows of this war. We are collateral damage to the huge amount of money on both sides of this digital disruption and the algorithmic aggregation of content.
On even days, I find myself aligned with the left because I think some information should be freely accessible. I believe that the term of copyright is too long, that artists build upon other creative works and that the Fair Use defense is necessary for a balanced and creative environment. Besides, who doesn’t love a good library or museum?
On odd days, I am firmly on the right because I want to be compensated for my work, I want to have some say over its use, and I want credit where it is due. Most days, though, neither side is the friend of the artist who is trying to put food on the table and live a well-deserved prosperous and creative life.
As artists, we are constantly being subjected to the downward pressure of creative fees, license fees, and the overuse of Work Made For Hire contracts. Every day, there are more over-reaching right grabs that extend well beyond the basic economic necessities of most companies, and they are all served up by the clients, publishers and others who want to benefit from our copyrights.
On the Left, the “Free Culture” has been replaced by the older business model of the free-stuff-adds=eyeballs-and-sells-advertising. The use of EULA’s and Terms of Use that benefit the technology companies in ways that are not completely understood or even exercised yet has become a standard practice. These rights are demanded from all who participate yield nothing to the independent creator other than free access to upload, create and share the rights to even more free content.
My ever-increasing cynicism towards copyright has led me to conclude that for the photographer, copyright has become a red herring or even worse a MacGuffin. Current copyright practice seems to equate with registering in bulk thousands of images (at best are an inconvenience and at worse an expensive nightmare), all the while betting that one day some entity will infringe, and the photographer will have “caught” the infringer – or at least the ones with money who are worth pursuing.
Sure retroactive licensing to infringers is a business model if you want to play that game of “whack-a mole,” but most photographers want to create new work, not stalk their images online. Registration is not, in and of itself, a real solution to the control and compensation that artists need to prosper.
I have also realized that changing public sentiment toward the value of copyright for the artist only goes so far. Most people don’t infringe to hurt an artist but rather they borrow to solve a communication problem all the while celebrating through exposure the artists they love. Intellectual Property theft is different than other property thefts. Stealing a car means the car is no longer there for the owner to use. IP theft leaves the property intact. I also recognize, to some degree, that we all infringe copyright every day with innocent intentions.
And even when it is not outright infringement, the sharing we love to do on social media rarely provides any economic benefit to the copyright holder. It may be legal, but only the hosting platform benefits.
I don’t have an easy answer. I do have some ideas about how to change copyright to benefit the artist. However, that is for another post on another day. My suggestion to photographers, today, is that we do our best to work with the copyright laws we have. And work together – like in our ASMP community- to influence lawmakers to improve copyright to benefit artists and promote the progress of science and the useful arts.
So what day is it, Even or Odd?