Oh boy, a debate over copyright and fair use in the NY Times bits blog (here) between Rick Cotton, the general counsel at NBC and Tim Wu, a professor at Columbia Law School.

RC: Fair use in the digital age is the same as fair use in the non-digital age. The fact that digital tools make it easier to use other people’s work doesn’t affect the analysis of whether that use is fair. Generally speaking, if you are making fun of, criticizing or commenting on a work (and not just reproducing or copying it), courts have found that you can use the work only to the degree necessary to make your point about that work.

[…] fair use is not a “right,” a misconception and misstatement frequently made these days. Rather it is an exception to the copyright owners’ exclusive rights to determine how their expression is used in new works.

TW: …it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use.

[…] We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect.

Here’s what I think, all these people, who wish for copyright reform, so they can practice their “art” will be begging for forgiveness when all the corporations get tired of trying to protect the works they paid to create and instead decide to step into the online world and stomp the living shit out of everyone by employing thousands of salaried creative people to repurpose every uncopyrighted piece of material into some entirely forgettable eyeball splitting video.

It’s beyond my comprehension why people wouldn’t want original material they created protected under copyright law. Maybe readers can show me a reuse of someone’s work that adds value to this planet?

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  1. To assume that the primary value of fair use is to “add value to the original” is false. Fair use gives back to society, not to the original author.

    And while remixes are often cheap, shoddy one-liners, you can’t deny that it can sometimes move you just as much as the original (albeit in a different direction). I myself am not a big fan of repurposing another author’s material, but I do occasionally enjoy DJ mixes/remixes, parodies, and satire, especially if the new work does not make more money than the original.

  2. This one-sided dismissal of fair use is seriously flawed, for a large variety of reasons. It’s worthwhile to mention one of the most important reasons of fair use: To comment about something. Or, to put it more into a US context, fair use does facilitate free speech. Seen in that sense, fair use is indeed almost a right – regardless of whether people like it or not.

    Second, realizing that fair use does indeed potentially enable the creation of (let’s call it) derived art work, regardless of whether you like it or not, Rob.

    Here’s a simple example. If a movie director wants to shoot a movie, and a scene has someone else’s art work, say a photograph, in the background, then the movie director has to make sure he gets the photographer’s permission. In fact, most movie directors employ legions of lawyers who “clear the rights” for this kind of absurdity. So Rob, explain how this application of copyright provides a service (and no please a direct answer about exactly this particular case).

    Other examples, of course, are, say, rap/hip hop musicians who can’t afford to pay money for a “sample” they use (I personally do not listen to hip hop, and I couldn’t care less about most of the music). So the solution is they can’t produce their song. So that’s just tough luck? Are we to judge that that song is, well, not “valuable” enough, because it’s merely derivative. The one example I do remember here, which I actually like, is the Beastie Boy’s “Jimmie James” which in its original version had a sample of Jimi Hendrix in it – the released version didn’t.

    In the end, these examples actually boil to down to money, since only large Hollywood production companies and rich musicians can afford to either pay their lawyers to check contents or to pay for samples. That is hardly how one would like to organize a culture, even though, of course, it is very convenient for the corporations, who according to Rob so eagerly protect copyright.

  3. I think this problem has its roots in the misuse of copyright by big corporations – the fact that a corporation rather than an author can own copyright and then campaign to have their rights over original content way past the death of the author gives the concept a bad name.

    So does the misuse of the law (especially in the US) to threaten a lawsuit involving expensive lawyers against individuals stating a view, often covered by fair use, that they can’t afford to defend, or against publishers/hosts who give in and take content down for the same reason.

    Its very tempting to see these actions as a result of the existence of copyright, rather than a wider issue with corporate behaviour and the law as a whole.

    If copyright law is to function and be understood and defended it needs to protect authors, and be as accessible to them as to a big company. And misuse of fair use has to be penalised both by those who claim fair use when it isn’t, and those who go after genuine fair use in a way that can’t be defended by most people.

  4. The new definition of ‘fair use’ TW proposes is exactly what fair use is not about. If value can be added by trading on the underlying value of a copyrighted work, that demonstrates the intrinsic value of that copyright, and the need to see it protected. Incidental appearance of a copyrighted work, such as a painting in a film, or a few frames of a copyrighted TV show (even if they are relevant to the material, but especially if they are not) deserve an exception. Since pretty much everything is copyrighted, we’d be hard pressed to be able to create any new works if the mere appearance of some part of something copyrighted in a new work was an infringement.

    @4 is correct that movie clearances are a royal pain. I think they have made an industry out of going too far in respecting rights, and biased us against the restrictions we think exist in copyright.

    This is no reason to accept a rule that any value-added use of a copyrighted work makes it fair game. Printing a photo in a magazine with added text and commentary arguably creates a work of substantially greater value then either the raw words or images. Should magazines not need to respect copyright in this instance?

  5. I think what this whole problem fundamentally boils down to is that people are eager to decide a priori whether derived art is worth anything or not. It’s quite obvious, for a large variety of reasons, that that is a very bad idea.

    @6: A magazine or blog wants to discuss a photograph and explain why in their view the photograph contains major problems. Let’s say – just for the sake of this example – the photograph in the eyes of a large number of people is incredibly sexist and let’s also say that the photographer disagrees with that assessment. So what is to be done? Obviously, the photographer will not grant the magazine the right to reproduce the photograph – of course posturing that it’s about copyright, whereas in fact it’s about the fact that he/she is worried about being exposed as a sexist. Equally obviously, printing the article without the photograph is not a good idea since many people might not have seen the photo or might need the photo as a visual cue. So what is to be done? A clear-cut example of fair use, especially since this whole example essentially boils down to a case of free speech, from which a large number of people, namely the readers, will benefit, regardless of whether they agree with the article or not.

  6. @ JM Colberg: It’s not a one sided dismissal of fair use. I think copyright law works fine the way it is. I’m not arguing for the removal of fair use. I’m only bashing the idea that it should be expanded to include commercial use or the use of the entire work. I guess I live in an editorial world. I’ve never had to clear the rights of anything that appeared in the background for any picture I’ve ever published.

    As far as commercial things like the movie you mentioned I don’t see why people who own copyrighted works shouldn’t have the option of not being included in something commercial. I don’t think it’s crazy at all if you make a movie that includes my photograph hanging on the wall you should pay me for that use or ask permission. If it briefly appears the courts would probably allow it (big studios don’t want to risk it so they clear everything) but if it’s integral to the shot then I need a cut. Documentary filmmakers don’t have to clear rights.

    Here’s what I will never understand, people who are to effing lazy to clear copyright. My only experience with this is my friend who owns a successful ski film company wanted to use a Bob Marley song in the movie. So, he wrote a letter to Rita and then called her on the phone. She agreed.

    Here’s a simple test for me. If a copyrighted work increases the value of your commercial project then you need to pay a cut of that value or ask for permission first.

    Editorial use, partial or derivative use in artwork and education use are still covered. Commercial is not.

  7. Rob, since you asked for it, here is an example that, in the eyes of many people, added “value to this planet”:

    Clearly, there are tons of copyright issues with this Banksy piece, aren’t there? But the important thing about this piece is not whether you or I think that this bit of art is any good (because it is not for you or me to decide that), but rather that art like this can be made freely (which in actuality it can’t, so Banksy is a pseudonym for someone unknown – of course, that creates a large part of the appeal, but that’s a different story).

  8. @PE: The main reason why I disagree with you about the film thing is simply because while Hollywood might be able to have the deep pockets to do this, some small aspiring film maker might not have the same pockets. And which film student has the time to worry about a script, about how to shoot it, about maybe getting the film into Sundance, and about which bit of the background might need clearance?

    The problem is that the problem comes in bits. I supposed we’d both easily agree with a case where some insurance company, say, wants to use someone’s stock photo in a company brochure. Clear, simple, they have to pay. But then you can create increasingly more complicated examples, where the issue of copyright gets murkier and murkier, and in the end, you’re in the kind of mess we’re in now, which for many commercial cases is simple and good, but for many other cases is outright bad.

  9. @ JM Colberg: Since the the student/ indy film maker doesn’t have the resources (i.e. money, legal dept., etc) they should be exempt from copyright issues? Using that same logic they should be have free/ cheap access to top acting talent as Brad Pit. If you want to play you have to pay.

  10. I’m glad you brought up Sundance. Most of the discussion about distribution deals there involves how much it will cost to clear the rights on a movie they want. It’s factored into the purchase price. Most of the films shown at Sundance are not cleared and that’s probably bending the law but tolerable because if the movie sells the rights will be cleared and the copyright owners will get paid. “March of the Penguins” had it’s soundtrack ripped out and was re-scored before distribution.

    This in no way prevents aspiring filmmakers from making movies. It prevents them from making a blockbuster with out paying all the contributors a fair share of the take, that’s all.

    There are plenty of laws on the books that are ignored by the courts, law enforcement and the citizens. That’s an acceptable approach to handling stuff like this. It’s not about creating the perfectly worded law it’s about adjusting it as we go.

    Your other examples of commenting on a photographers work and banksy reusing the parts of several photographs are all covered under fair use as it stands now.

    And, it actually is up to us as citizens to decide how copyright law works and what types of things are covered and if we think certain types of artwork should be allowed or not. That’s why I use my blog to voice my opinion about such matters.

    I think there are two sides to how people think copyright should be figured out. Those who want the law to change to better reflect how copyrighted works are currently being used and those who are comfortable with the gray areas being defined by courts who will ultimately draw much of their decision from what the public finds acceptable and artists currently tolerate.

    That’s why I think it’s important for people who care to voice their opinion about it. The future laws and court decisions will be based on what we all find acceptable.

  11. as Picasso said “If there is something to steal, I steal it!”


    Years ago an old friend was doing some work experience for a company that was producing channel 4 idents specifically for what must have been the 1988 Olympics – she had to call up and ask for clearance and a price to use a few bars of the music by Vangelis from Chariots of Fire. She was quoted something like £2,000 which was a huge amount of money back then. The director laughed and told her to call back specifying that it was not a product ad, and see if she could get a requote, which she did, and the price dropped to around £50.

    As for re-use that adds value – there was a pretty good campaign about 15 years ago by NICORETTE PATCH which were pretty much exact copies of the MARLBORO cowboy ads (even with the same cowboy) with the headline “WELCOME TO NICORETTE PATCH COUNTRY”.

    MARLBORO don’t seem too worried by their copyrigt here though, as Richard Prince has found out, much to the delight of Sothebys.


  12. @APE #8, “If a copyrighted work increases the value of your commercial project then you need to pay a cut of that value or ask for permission first.”

    We’ve been trying to educate people on that point for decades.

    Recently I met a woman selling purses with the front page of major newspapers découpaged on each side. I asked her if she had received permission or was paying a license fee to the papers and/or the photographers for reusing their work. She said no, it was fair use and the photographer’s credits could be seen because she used the paper “as the paper” and she hadn’t changed the format or scanned the images, etc.

    I argued for some time until she ignored me…

  13. The Kleptones ’24 hours’ and ‘A Night at the Hip Hopera’ are both pretty much all copyright infringement from top to bottom. Both of them are combinations of large chunks of other’s original works. They are also works of art in their own right, maybe not as good as the originals, maybe they are. But in the assembly, they are undeniably something new. They are not a replacement for the originals.

    This is a copyright corner case. It’s hard to draw the lines on this one so that it’s possible to do this or even encourage other people to go forth and do likewise without doing other damage to rights holders. Huge chunks of songs are sampled and recombined.

  14. APE, I’m glad you said that it’s up to us to figure out what to do with copyright laws and not to the courts. That’s an important point. I’d personally also add corporations to the mix – given that corporations have entrenched interests (see how Disney got copyright extended so that Mickey Mouse was covered after the original copyright ran out) I don’t think they should have any say in this.

    You’re also right to point out that even if stuff is illegal people will still do it. I personally don’t find that ideal, though. If people know that what they do is illegal, that’s a different way to work than if they know they can do it.

    We’ll have to figure this out – and I personally think that the debate needs to move away from solely thinking about money first as shocking as that might sound for some people.

  15. Collage as an expressive, rich medium would not exist without reuse. I love collage… and agree, rights should be gotten fairly.

  16. There is no financial means test for fair use. Just because someone cannot afford it, does not mean the law intends to allow its use. Nor is it about judging whether a derivative is “Worth Something” to allow it into the cover of fair use. Fair use is simply meant to enable discussion of a protected thing, not reuse or repurpose it.
    Copyright is there to protect the original author, not those who seek to derive additional gain from what the author created. There has been much discussion about alluding to derivative works and how fair use fosters free speech and creativity, and if fair use were to be constricted (and it is) it would somehow harm creative expression based on using the original for other things. That’s exactly what is supposed to do. Copyright is based on the concept of encouraging creativity by protecting the creator and his/her ability to control the fruits of that creativity. You can’t take that from the creator just because you think you might have something cool or worthwhile to add.

  17. “and I personally think that the debate needs to move away from solely thinking about money first as shocking as that might sound for some people.”

    Who was it that said “money tends to bleach out all other values”?
    Then, how do we remove the bleach? I don’t think it possible, we live in capitalist market lead world and the fine art world is the icing on the cake.

  18. Sweet Jesus in a Jet Car – this topic has got some good back and forth here.

    Maybe Rob could interview my favorite Intellectual Property attorney – Mary Luria at Davis and Gilbert (mluria at dglaw dot com)

    Rob’s very wise to point out that fair use doctrine does come down to interpretation – it’s the same as obscenity laws where jurisdiction and community standards affect the legal outcomes – and as such, copyright holders really must be more vocal and diligent in protecting their works.

    And may I add that protecting copyright is not only in registering your work but also in reading and negotiating the contract that comes with the assignment.

    Also – derived work to look at – Sherrie Levine, Thomas Ruff’s jpgs, Richard Prince, Idris Khan – good post here at Jim Danziger’s site:

  19. Quote:

    “Documentary filmmakers don’t have to clear rights…”

    Uh, sometimes they do. To some extent it’s a judgment call, whether you want to rely on fair use, but your statement is a bit too matter of fact to be accurate considering the numerous examples to the contrary.

    Here’s a well known recent example from Mad Hot Ballroom where six seconds of a Rocky ring tone in a scene created problems for the filmmakers:


  20. Bitch, bitch, bitch.

    Here’s an example: http://www.kernel.org plus http://www.gnu.org followed closely by wikipedia.org (tho I’m sure you’ll also claim that wikipedia is useless and that software is a magical form of copyright-protected work).

    Those first two have generated *billions* of dollars.

  21. There is a gray zone around every line that’s drawn. In that gray lives judgment calls, tolerance, petty theft worth little cash, among others. If we move that fair use gray zone to the left thus allowing easier access to copyrighted works, who here thinks that it will benefit society or suddenly become MORE fair? And … fair to whom?

    Copyright exists to ensure a rich creative and inventive society; financial gain is important for artists, for everyone, we need to protect that. Agreed, taken too far it stifles derivative works. However, as it stands, are there any inspiring cases that anyone can offer where honest passionate creatives wanted to write, photograph, draw, sing, paint, invent, or whatever and didn’t because they would risk copyright infringement? I’d say those who stop know that what they’re creating isn’t original and those who don’t stop also know they are trying to get away with something.

    Include my photos predominately in a movie scene – cool! Do it and make millions without compensation or permission – not cool. Include them as incidental props and make millions on the sale – that’s cool too. It’s not all that tough to get an intuitive feeling for what’s fair. Rob’s exactly right @ 13.

    In the case of the Richard Prince’s, I’m guessing he knew he was going to be controversial, did his research, and plunged ahead all the time thinking, “all that might happen is they ask me to stop” and if they don’t the controversy will only help me sell these suckers.

  22. Hey Phill MV – Those are great examples and they exist under the current copyright laws. Somehow, someway, inventive individuals persist and win.

    PS – I’ll bet you have some bootleg software or music downloads don’t you? Aren’t you glad enough people paid for that slice of creativity so the originators could afford to create it?

  23. @22 – you metion Idris Khan – well I must say I really like his work, but was made a little unseasy about it when I cam across the work of Doug Keyes, who seemed to have been doing something oh so very similar about 5-10 years previous to him, including one about the Bechers. I prefer Khan’s work, but have never heard him say it was copied.

    Doug Keyes still managed to get an award from Santa Fe very recently, mind. But I can imagine his feelings when he first saw Idris’ work being so acclaimed.


    But then, Picasso covered this perfectly when he said, “”Good artists copy. Great artists steal.”


  24. [Please put the typos down to a lovely couple of glasses of Balvenie. merci a tous.]

  25. Some random thoughts on all the stuff above.

    When thinking about copyright it may be useful to separate corporate ownership from individual ownership. Disney has been cited as an example of corporations attempting to extend copyright beyond all reasonable limits. At some point stuff should probably fall into the public domain… or should we be hunting down the decedents of the relatives of Michelangelo every time we paint or shoot a photo of his David? How about if we can’t find the proper copyright holders of the David? Can I assert the rights? Can the current owners?

    Sure our living photographer ought to be compensated if his work is used in an ad, I don’t think anyone would disagree with that. So private vs corporate.

    Documentary filmmakers: What about all those “re-enacted” documentaries where they dress modern actors up in WWI gear to act out scenes that could have been taken from newsreel coverage? Umm, limited term licenses from the stock agencies who now own copyright on the footage means your documentary is valid for 5 years and then you don’t have clearance any more unless you re-license.. so you shoot your own fake footage. Is this a problem? What happens to that historical footage?

    A LOT of the nuclear testing film was almost lost before someone dug it all up and re-purposed it in a documentary.

    Too tight copyright ownership could mean a loss of valuable historical material. Agency A owns it, goes bankrupt, warehouse of old, poorly filed stuff gets trashed. Then again, material that isn’t copyrighted could also be lost since there’s no monetary incentive to index, archive and sell it for further use. Government agency folds into another agency and same warehouse of stuff is sent to trash. Sigh.

    Richard Prince (who, if I read his bios and interviews right, started shooting news clipping photos long before he ever became the artist he is now) shot a Phillip Morris owned copyright and not the original photographer’s copyright. Has he got away with his re-photographs for that reason? A rephotograph of a corporate owned ad may just be artistically more defensible than a rephotograph of the photographer’s shot, especially if the photographer’s shot wasn’t used in a cigarette ad.

    So in one case re-using copyrighted material is hindered by corporate copyright, and in the other it seems to be enabled by the same corporate ownership.

    I can remember the Beatles and several other big groups getting sued because their songs seemed to have patterns of notes from other, earlier songs. The argument was that the appropriation was unconscious but in several cases money was handed over. I don’t think the laws have changed but the public perception has, since back then it was a bad thing, but now, 15 years after the hip hop revolution sampling old songs directly has gone from “get permission” to “of course you can do it”.

    The ease with which we can mash-up and appropriate work means that more and more people do it, and this eventually changes the perception of the morality of doing it. When it took a lot of effort to sample music, sampling was not cool.

    Appropriation in art? You can’t copyright an idea yet, although there are folks out there who figure you should (witness the complaints about shooting a scene from the same viewpoint as someone else shot it). This is a good thing, art that doesn’t comment on earlier art is very rare. But as modern life got more commercial and brands got more universally recognized, artists started to comment on them (think Warhol’s Brillo boxes or Banksey’s happy trio above) just as they would comment on any other aspect of modern life. Fair artistic use?

    Copyright laws have changed for centuries and will continue to change, it’s up to us to decide who gets to benefit from the changes, and how.

    Kim Taylor

  26. “it’s up to us to decide who gets to benefit from the changes, and how.”

    ‘Us’ is not homogenous though. Mainly there is a two-sided tussle between corporate IP dominions and the public as a whole. Both sides, for opposing motives, want someone else’s copyright minimised to their advantage.

    Slap bang in the middle and unnoticed by either major adversary are the little guys who actually create stuff, who have not rooms full of corporate lawyers, who have little bargaining power against corporate rights grabs, who have no significant lobbyists, and who also have to deal with the public’s increasingly contemptuous attitude toward copyright.

    The law seriously does need realignment in order to recognise that Disney, Monsanto and Sony vs. Free Culture is a self-serving, destructive and impoverishing dynamic that obscures a three way balancing act where creators are the weakest of all. We absolutely need copyright, but the main protagonists are set on removing fairness to authors which was the original intent for their own partisan reasons).

    (more interminable ramblings about the failure of the Hutton Review of UK Copyright law to even notice this, let alone do anything are at http://tonysleep.co.uk/blog/reviewing-gowers-2 )

    Incidentally, if I was on a jury regarding IPR in that Banksy piece, I’d regard it as a substantially new work. And recognition of the need of a right of fair use for parody is anyway working its way into legislation.

  27. @29: I’m glad someone mentions the public domain. I would rephrase what you said about it though–it isn’t that “probably” works should go into it. The expiration of copyright, with works going into the public domain, is a fundamental part of the spirit of copyright law. The idea is not only to protect the rights of the creators and encourage more creation, but also to ensure benefit for the society as a whole. Since society can provide conditions under which creativity is encouraged and allowed, this makes a lot of sense.

    In this sense, the same push by corporations like Disney to keep extending copyright terms is hurting and weakening the law. And it is making people like me, who otherwise would be solidly on the side of asserting copyright, push the other way, in order to try to balance things a bit. In other words, “death to copyright” isn’t what a lot of us want. But as it is, the law has lost sight of its original intention, and *that* needs to be fixed.

  28. 2nding that the Grey Album is a pretty amazing piece of work that’s illegal not to sell but to simply reproduce. Not that I’ve heard it but if you want a copy I’ll have a friend send you one.

    From my understanding, for the low budget documentary producer, clearing copyrights is a byzantine task, and is almost as much work/money as the film itself. Even in Dave Chappelle’s Block Party (a killer film btw), you see people blurred out in the background. I guess they forgot to get their signed release forms. If Michel Gondry and his crew are screwing it up, it’s going to be hard for the guy down the street who has a good idea to have any chance.

    There’s no argument that people have every right to control the ways that their work is used, but I also believe (stepping up on a soapbox here) that creative work and creative freedom is an important part of having a democratic society. And low-budget documentaries, to me, are a particularly interesting and important form. I think there needs to be some middle ground here.

    Photographers have it incredibly easy compared to film makers; I’ve never understood exactly why.

  29. @Bruce DeBoer wrote: However, as it stands, are there any inspiring cases that anyone can offer where honest passionate creatives wanted to write, photograph, draw, sing, paint, invent, or whatever and didn’t because they would risk copyright infringement? I’d say those who stop know that what they’re creating isn’t original and those who don’t stop also know they are trying to get away with something.

    From my limited experience in film making, I think that this is actually a huge problem for independent film makers. You can’t walk down the street with a camera without having to clear many, many copyrights.

    I think this leads to a lot of stunted shots and wasted energy because a lot of the challenge of doing a shot in a city becomes avoiding the trademarks (gas stations, fast food, etc.) that pop up along the way.

    Has Bound By Law, the Fair Use comic book, been brought up yet?

  30. Well, how does everybody feel about the fact that photographs are so easy to make and distribute now? If the same freedom of creation and distribution comes to commercial filmmaking through copyright reform will we all reap the benefit. I’ve always believed that the difficulty of making something acts as a quality control filter even if a few talented people were left out of the process the benefits far outweigh their contribution to the medium.

    What if filmmakers start giving away their work for free in exchange for a credit in hopes of scoring a lucrative advertising gig?

  31. Ive spent a bit of time researching this type of issue and found this essay by Bill Jay rather interesting, its not directly relevant to this debate with regards the internet but no the less interesting regarding issues between Walter Bentley Woodbury (Woodburytype) and Sir Joseph Wilson Swan (Carbontype) if interested go to page 8 of Mr Jay’s fine essay:


  32. @A Photo Editor
    You should listen to the “This Week in media” podcast. They expect that independents will be able to monetize their work fairly easily. When you have not spent much, you don’t need much to pull ahead financially.


  33. Just ran across a summary of the Marilyn Monroe fun, the conflict between copyright and the rights of publicity which now seem to have been extended retroactively to dead celebrities.

    All in the name of merchandising of course.

    Regarding the appeal above to think about copyright outside of thinking of money, I don’t think you can do it. Copyright is money, without money there is no reason (aside from what, ego, bragging rights perhaps?) for copyright.

    For instance, copyright applies in the USA from the instant of creation but most folks assume you have to register your photos with the government to gain copyright. What registration does is allow you to obtain punitive damages beyond recovery of lost revenue due to a copyright violation.

    Can you have a copyright violation without demonstrating lost revenue? I suppose so but who beside a major corporation would bother?

    @34 above: Rob you already have filmmakers giving away their works, just check out youtube, you’ll find dozens of clips uploaded in the hopes of recognition, perhaps in the hope that some band will recognize the brilliance and hire the creator for their next video? Who knows.

    How about the content creation of “America’s Funniest Videos” or whatever it’s called? Surely that show doesn’t pay for all those home movies? If they’re given in hopes of a reward for most popular or something like that, I would bet the prizes don’t amount to what you’d pay a production company for a half hour of content.

    Sure, difficulty of production ensures rarity, if not quality, and thus the chance for more cash per sale. Few photographs means more money per sale. But are quality and quantity inversely related?

    Go to a sports analogy, what about a sport program that concentrates on a few potential athletes. Spend massive amounts of money on a few athletes and does that provide more gold medals than programs that rely on selecting out of massive grassroots participation? How did/does Brazil produce so many top soccer players while East Germany went lacking? Of course the opposite was true of swimming or biathlon I guess.

    Maybe the same with the creative arts? More kids with cameras may just mean more great photographers in 20 years time?

    Few people in highly technical things = best quality?, large numbers in low technical things = best quality? Simpler cameras means highly technical becomes point and shoot at all levels and so mass numbers is the best way to get quality at the top?

    Kim Taylor

  34. Mr. Haggart,

    I believe one problem is that there is a fundamental laziness that arises from a misunderstanding of what art is.

    Let’s face it: most artists never rise above mediocrity (due to laziness, lack of ability, or misapplied persistence), and appropriation art [parody, homage, fan fiction, etc] is their chance to easily get some recognition in lieu of actual creation. To further complicate the issue, they now can receive peer recognition (the internet’s true purpose) which, lacking before, now makes them believe they are liked or cool. This is addicting.

    The burst of creativity that comes in youth and causes a boy or girl to endlessly copy the things they love is wonderful. In Junior High and High School, I did that with comic strips and cartoons and my favorite movies. But such copying is make-believe, a natural and good extension of playing with action figures or dolls. I stopped copying because it held no interest to my circle of friends and girls found it interesting only in so far as it related directly to them. I stopped copying because my own ideas began to muscle out the ideas of other men and women. I am grateful for the time spent doing this: youthful copying developed my skills in areas that have led me to an interesting professional career.

    Luckily, I had no internet. When the internet says “yes,” there is no need to go beyond the first junior high levels of awe. The masses will win out and they get what they want: the work of adolescents, liberated from the gadfly of conscience.

    Thanks for many many interesting posts.

    copyright © 2008 Brian R. Hischier

  35. It astonishes me how few people actually understand their rights as copyright holders, they either don’t realize that, as a photographer, they own the copyright the moment the shutter snaps or they think their copyright is iron clad and try to hold the rights not only over their image but over the entire concept (whether it was original or taken from someone else).

    Fair Use was designed more to abide by the freedom of the press so that someone writing a commentary on a piece of work could reproduce the work as a citation, and for educators so that they could reproduce the work for the purpose of cultural education – both without having to go through the hassle of tracking down the owner and asking for permissions and having to pay untold monies in doing so.

    Fair Use does not cover “borrowing” or “hot linking” images for use on personal websites, digital manipulations, inclusions, or distortions of an original work to be distributed as a secondary work, or anything outside the scope of informative critiques and educational analysis.

    At the same time, copyrights do not give the creator the ability to sue a person who exercises fair use correctly for untold amounts of money, or another artist who had a similar idea and executed it in their own fashion.

    The advent of digital technology has not changed fair use, only increased the number of uninformed individuals on the playing field who think they know the rules and like to make as much noise to have the attention on them.

  36. I am an editorial photographer and was wondering what the limitations were as far as photos and paintings in the background of editorial shots goes. Say I am shooting a portrait in an office and the background has a large painting in it? Am I infringing?

  37. “Maybe readers can show me a reuse of someone’s work that adds value to this planet?”

    Hmm, I think you’re a bit off track in that thinking. Especially if you give art any historical context. In fact, when you start doing a little research into it, true originality becomes harder and harder to prove.

    The Aeneid was basically a re-rendering of the Odyssey.

    JS Bach’s St Mathew Passion was a copy of the Gospel of Mathew.

    Marcel DuChamp’s Mona Lisa parody is held in very high esteem in the art community as is Salvador Dali’s Self Portrait as Mona Lisa.

    And more recently, Shepard Fairey created the most iconic piece of art (Obama Hope Poster) of the past decade by copying what was effectively a photograph of very average merit (albeit orginal). Of course Fairey’s work also owes a lot to the Che posters of Jim Fitzpatrick which were also based on a (“stolen”) photo by Alberto Korda.

    So yeah, I’d say plenty of works based off other borrowed works add plenty of value to the planet and culture.

    And let’s face it. The horse has bolted and is in full flight. People WILL steal your photos whether its legal or not so the smart folks are currently figuring out new business models based on that reality.

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