There's No Such Thing as a Compulsory License for a Photo

My friend Andy has a terrific post up about his ordeal settling with the photographer Jay Maisel over the threat of a copyright lawsuit. Chances are if, you're reading this, you know about that. If you haven't ready Andy's story, go and read it and then come back.

There's one pointed question I've seen crop up in a number of conversations about the settlement:

Isn't it wrong that Andy chose to pay the licensing fees for the music but not for the photograph?

This question makes the assumption that Andy could have paid the licensing fees to Maisel like he did for the music. He couldn't have. This is because Jay Maisel refused to license the image and there's no compulsory license for photography like there is for musical compositions.

A compulsory license is what it sounds like: the owner of the underlying musical composition is required, by law, to license it to anyone who wants to use it at a predetermined rate. This prohibits song writers from picking and choosing who gets to perform their works. It also allows Andy to license, at a fair rate, the underlying song compositions from a Miles Davis album to make a new album of original recordings (remember, copyrights to recordings are different from copyrights to the compositions of a song).

The copyright of photographic works, unlike works of music composition, is not subject to a compulsory license.

This means that photographers, unlike song writers, can forbid anyone from reusing their work, whether it is for a poster or for an album cover.

Now, artists like Jay Maisel obviously enjoy this absolute control over their work because it lets them dictate who uses their art and when. Song writers, unfortunately aren't afforded to this their published works.

So while no one could have prevented Andy from recording an album of remixed music written by Miles Davis -- not even Miles Davis himself if he were alive -- the same does not hold for a photo of Miles Davis.

Remember, Maisel admitted he would have refused to license to Andy the rights to the photo. So Andy's only option, short of not using the photo at all, was to use the 8-bit remix cover and wager it was a fair use.

That Andy could, in one case, hire artists to legally remix music by paying a compulsory license, but in another case had to make an expensive and risky bet on fair use (a bet that didn't pan out) feels unfair.

Put another way: why are composers required to license their compositions at a fair rate to anyone, but yet virtually every other type of artist doesn't have to play by the same rule?

I doubt anyone would argue that song composition is a lesser art or any less deserving of full royalties than other arts.

One reason is that the practicalities of compulsory rights for photographs (and other works) are hard to imagine. Music compositions are written, then performed, then recorded, whereas photographs are snapped and then printed. There's no underlying right in a photograph (thank goodness) to its "composition" like there is for a piece of music. So that is part of why compulsory licenses for photos don't exist.

But I think another part of the story is that the law has evolved the musical compulsory license as an implicit acknowledgement that music compositions are both maleable and fundamental components to our culture. Compulsory licenses make possible everything from karaoke bars to cover bands to remixes like Andy's. The alternative -- allocating complete power to composers over who reuses their work -- yields transactional costs on culture that are simply too high. The law hasn't felt the same way for the visual works.

So will other art forms, like photography, adopt compulsory licenses? I doubt it, but I can't help but they'd be a great compromise in light of Andy's settlement. I asked Andy over email whether he would have paid a mechanical license for the photo:

"Absolutely. If the laws and protocols for remixing photos were as clear and fair as covering music, I would've bought a mechanical license for the photo in a heartbeat. But the laws around visual art are frustratingly vague, and requiring someone's permission to create art that doesn't affect the market for the original doesn't seem right. I didn't think it would be a problem, especially considering the scope of my project, but I was wrong. Nobody should need a law degree to understand whether art is legal or not."

RiP: A Remix Manifesto Screening with Me & Aram

This Sunday UnionDocs is hosting one of the first screenings in NYC of the new Girl Talk documentary RiP: A Remix Manifesto. I'll be part of the discussion afterward with my friend Aram Sinnreich.

Email for reservations.
7:30pm, May 3rd 2009
322 Union Ave in Williamsburg.
L train to Lorimer / G to Metropolian / J,M,Z to Hewes.
Suggestion Donation: $5
Reservations will only be held until 6:55 pm.

Here's the trailer:

I hope to see you there!

We Are One if You Are HBO

photo by jurvetson
photo by jurvetson on flickr

Techdirt is reporting that Against Monopoly is reporting that HBO is sending take down notices to people who have uploaded their own recordings of the Inaugural Concert: We Are One.  I haven't been able to verify this, but if it is indeed the case, it would seem that HBO is misunderstanding their rights under copyright law. Note that I am not a lawyer, so this is not legal advice.

Since HBO merely owns the copyright to their recording of the concert, they can't control what other people were doing with their own recordings from their own cameras. This is because a work is not entitled to copyright protection unless it is fixed. The actual performance that happened that evening wasn't fixed or copyrighted until it ended up on HBO's tapes (or hard drives).

If the content of the concert was in the public domain or free (e.g., The Star-Spangled Banner is in the public domain since it was created prior to 1923), then any audience member who recorded it had the right to make a recording of it and distribute that recording since they owned the copyright to the video. Putting aside questions of anti-bootlegging laws (which are arguably unconstitutional and not relevant to DMCA takedown notices), it is not clear that HBO can prevent distributions of privately filmed performances of public domain works that were performed in a public venue, which, if the Against Monopoly report is correct, is what part of what they're trying to do.

However, according to the Wikipedia page, a lot of non-public-domain non-free content was performed.

Which means that by recording and distributing a live performance of say, a Bruce Springsting song, an audience member might be infringing on the boss' copyright, but probably not HBO's copyright. Does anyone know more about bootlegging laws and how they might or might not apply here?

So what right does HBO have to send takedown notices for other people's works? Sending fraudelent DMCA takedown notices is itself a violation of the DMCA, so if you've been threatened by HBO for posting videos you recorded at the inaugural concert, you probably have the right to file a putback, and perhaps take action against HBO.

There are bigger questions, however, about the inaugural committee's right to leverage tax payer money and support to sell off exclusive rights of a public event to a private entity such as HBO. I'm not clear on whether their status as a legal entity would entitle them to do this.

Anyway, while I would like to see HBO put the concert into the public domain along with other works of the federal government, that is probably impossible as the recording contains works that are in copyright, such as Bruce Springsting songs.

There is the possibility that HBO could put the video but not the audio into the public domain, but I do not think there is an easy work around for including both the audio and video. This is not to say, however, that HBO is justified in sending nasty letters to citizens interested in helping celebrate an important event.

I sympathize with the inaugural committee's desire to produce and execute a fantastic recording of a historic moment in American history. I know that this kind of production costs money and there must be incentives for creating it. But I think the conflicts between HBO and citizens indicate that copyright is not the proper incentive here. It alienates too many citizens interested in documenting their own version of history, and given the context and content of our current president's administration, sets the wrong precedent for sharing that history. HBO should be ashamed of themselves.

Progressive Music

More history being made this week for the music industry. First, NIN topped the Amazon MP3 charts with a CC licensed instrumental album.

Today, Apple promised to go DRM free on iTunes by the end of Q1 2009.

In October of 2006, I organized the first DRM protests in the states while a student activist in Free Culture @ NYU. A year later, we protested the midtown Apple store after Tower Records went out of business (Tower was our second target after Virgin Megastore in Union Square.)

A couple of months after the Apple protest, Steve Jobs wrote his famous anti-DRM letter to the music industry. Since then Apple has ostensibly been negotiating variable pricing and removing DRM entirely from the store. Jobs probably sacrificed the one-size-fits all $.99 price per song so that he could get DRM completely out of the store.

There are still things to be done, however, before victory is declared. The iPod supporting truly free formats would be nice (I'm becoming increasingly interested in collecting FLAC music), at least until the various patents controlling MP3 expire. Also, native CC licensing built into music stores like Amazon and iTunes would be nice too.

But as Voltaire said, "The perfect is the enemy of the good."

The WSJ Gets it Wrong Again and/or The RIAA Lies Once Again

The RIAA Logo.

It turns out the Wall Street Journal's sloppy journalism cuts both ways. On Friday I blogged about how the WSJ was reporting that the RIAA had ceased filing lawsuits against individual file sharers. Stupidly, I didn't really think about their source or attempt to verify the claims myself. Neither did the Associated Press.

Ray Beckerman (who had skeptically acknowledged these reports when the WSJ article first surfaced) has discovered that the RIAA filed another round of lawsuits against individuals just last week, a discovery that directly conflicts with the WSJ piece.

The WSJ's article suffers from exactly the same flaws as its piece on network neutrality; high on conjecture, low on meaningful facts about the get of the article. The lead establishes that the RIAA is "set to drop its legal assault" but goes on to describe the negotiations the RIAA is establishing with the ISP industry. Noticeably missing from the rest of the article is any evidence demonstrating that the RIAA is actually stopping its legal assault.

So we only have ourselves to blame -- we read what we wanted to read and without Ray Beckerman's excellent sleuthing, we might still be giving the RIAA credit for coming to its senses.

Whether it was the RIAA lying to reporters (which Ray seems to believe is the case) or the WSJ trying to see a story where there wasn't one, this was a case of not thinking critically enough about sources and evidence based reporting. Either way, if the network neutrality article didn't give you enough reason to distrust the WSJ's technology reporting, this incident should. This also leads me to believe that the WSJ has under-critical technology reporters rather than a malicious agenda to purposely misunderstand technology topics.

There's a lot to be cleared up in this situation and there is probably some truth to the RIAA winding down their lawsuits, but I don't think we should hold our collective breath or consider this the victory we initially did.

Soulja Boy Now Officially Sending Takedown Notices

A story told in three videos:

1. "Original" Soulja Boy Video **

2. Students for Free Culture board member and friend Kevin Driscoll teaching ROLFcon nerds how to do SouljaBoy:3. Kevin responding to his Soulja Boy takedown notice:

It seems that Kevin's video has become the victim of YouTube's auto-takedown robots. Good thing he posted it to as well. More info on the ROFLcon blog.

**Soulja Boy's YouTube channel doesn't allow me to embed his video into this blog, and despite my halfhearted attempts at circumventing this "feature" I wasn't able to post it with the others. I can't believe I'm arguing for the right to embed a video, or even that it would be possible to deny me the right to do so, but this is what happens when we rely on proprietary video codecs like Flash.

MTVM and the Battle of Participatory and Passive Media

After my first gee-whiz-I-love-nostalgia post, I had some further thoughts on MTV's new music video archive site.

First, these kind of sites are are a bittersweet evolution, and in a sense, a compromise. While it is fantastic to see MTV pushing the music industry forward to a point where they're offering content openly and gratis, the features of MTVM are simply not robust enough to sustain the long term health of our media environment.

MTV will still remain the gatekeeper of culture as they did as a television station -- there's no ability to upload your own videos to their network and the most interaction users have with the community is to add comments. There's no ability to download the videos for remix (they're also encumbered by Adobe flash) and the site seems to be generally lacking in the read-write attitude embraced by YouTube and other video platforms.

The web is a conversation, and with the success of sites like Seesmic, its clear that video can be as well.

The massive popular acceptance of sites like MTVM and Hulu, is compromising the natural interactive nature of the web for the sake of ease and passive consumerism. Where I like to think of the projects I'm involved in as breaking down the definition between consumer and producer, there's a very real chance that popular culture will not want to put out the effort to create their own culture and simply continue to passively consume the work of others.

We've seen participatory lose out to passive before. When public access television was initially conceived and implemented, a lot of media scholars spoke to potential of the cheap and easy nature of video to bring down the gatekeepers of traditional media conglomerates.

Almost 30 years later, Public Access Television is pretty much a farm league for amateurs looking to get a start in the traditional television market. It is, not, as its early advocates predicted, a utopia of participatory culture that competes and challenges mainstream media.

Now, however, participatory media has achieved a significant lead on the web. YouTube has massively popular stars that created their own fame and content from their bedroom, and Wikipedia has reached an extraordinary level of cultural significance. Indeed, most of the big sites on the web are participatory -- eBay, Craigslist, Google, or any blog platform. But we risk abdicating this leadership position by not challenging MTVM and NBC to open their network and content even further. In other words, keep the pressure on. Ask why the MTVM videos aren't available for download, and then, why aren't they Creative Commons licensed?

To some extent we've asked for this problem. Throughout the decade old debate over file sharing, a popular proposed solution to the lawsuits was for the content owners to simply offer free (or cheap) useful versions of the content fans were already sharing. They could compete with free and unauthorized (p2p) simply by offering easy and authorized. AmazonMP3, iTunes, and now Hulu all demonstrate that this solution works to some extent.

But I don't think we can be satisfied with simply watching TV on the web, and we should do all that we can to keep the tables tilted in favor of participatory media rather than passive.

Second, can someone please make a "Be Your Own VJ" drag n' drop playlist app with MTV's API that will allow me to create an 1 hour of non-stop awesomeness? I'd love to have a little standalone page that just recreates the heyday of MTV minus the VJs. Basically, just MuxTape for videos. I'm going to start hacking a version of OpenTape to work with MTV's API, but I'd love it if someone could beat me to the punch.

Third, does anyone think that the title "MTV Music" is ridiculously redundant? Music Television Music. Riiight.

Every Music Video Ever From MTV

Obviously Dire Straits' "Money for Nothing" is the #1 viewed on MTV's Music site:

Will this (obviously scientific) graph hold true for music videos?

song chart memes

Possibly, though I think there is probably more awesomeness here than standard TV. In some ways TV was not meant for short form video art with music in the background. Whether MTV continues to call itself Music Television should be up for debate, but I don't think anyone is going to argue that the web isn't suited for short-form video art with music in the background.

I think MTV may be cool again.

The RIAA Has Already Implemented Collective Licensing

The RIAA Logo.

Indulge with me in a thought experiment.

Suppose you download thousands of MP3s over filesharing networks, and then, one day, you get nailed with the threat of a lawsuit from the RIAA. The RIAA then asks you to pay a fee to settle it now, so that you don't face huge infringement costs. You agree to do so, using your credit card, over the phone with an anonymous settlement representative (not actually a lawyer).

How is this that much different from collective licensing like ASCAP? The idea behind collective licensing for file sharing is to enable users to share files freely while paying a fee, similar to how radio stations and restaurants pay a fee to play whatever music they want. The details might get hideously complicated and I have serious reservations about adding more taxes to my ISP connection, but I do believe collective licensing is the only way out of the woods for those in the entertainment industry not interested in real sharing.

Anyway, what is the difference between how the RIAA is implementing their lawsuit campaign, and the way collective licenses might work for file sharing? You're paying a 'one-time' fee to settle your debts to the recording industries for revenues they think you cost them while downloading and sharing files.

There are some differences. For one, the settlement fee the second time around is likely to be a lot higher and perhaps the RIAA won't even offer you the right to settle the next time they contact you. You would probably end up in court facing massive statutory fines with no option of settlement. Second, the settlement fee is probably a lot higher than what the market would decide on. And finally, the settlement fee is being extracted by threat of impending lawsuit, not subscription obligation.

But the fundamentals of the transaction are very similar: users are already engaging in filesharing, the RIAA threatens with large fines if they don't pay a fee, and then, when they do pay the fee, they're off the hook for the time being.

The RIAA, knowingly or not, has effectively painted their way into a corner supporting collective licensing as the future of their business model. Whether or not the campaign is profitable is a matter of debate, but with fewer than 1% of RIAA victims choosing to fight the lawsuits, the math is in their favor: 30,000 lawsuits multiplied by a conservative $2,500 per settlement garners the RIAA at least $75,000,000 over the course of their anti-filesharing inquisition. While the payouts do not exactly make up for lost revenue from the death of their cash cow, and granted the settlements have been totally ineffective stopping file sharing, someone at the RIAA must have done the math and realized the settlements are now a full fledged revenue stream.

So while the RIAA may huff and puff and say the lawsuits are about punishing people for 'making available' (an specious legal argument to begin with) and exposing the rampant theft of our cultural heritage perpetrated by America's youth, we should really see them for what they are: an adaptation by a business to secure a new source of revenue.

The pity it in all is that the RIAA is ruining lives by doing so. If they were to just embrace collective licensing as a legitimate form of revenue, there would be a lot less friction in the marketplace for music and filesharing.

*Note that this post doesn't take into account the differences between collective licensing and voluntary collective licensing, and over simplifies the whole topic quite a bit, and for that, please accept my apologies.

Arts + Labs Astroturfing Content Filtering

by Scott Ogle

I came across a new 'industry initiative' called Arts + Labs to campaign for content filtering on the Free Culture discuss list and Wired Blog. While not traditional astroturf (the fraudulent masking of corporate agenda as a grassroots movement), because they admit that its funded by the telecoms, the campaign language and aesthetic insipidly borrows quite a lot from the Web 2.0, and free culture movements. Can you tell which of the following statements are from Arts + Labs and which are not:

The internet has become our community, our marketplace, our digital neighborhood. The internet connects us to our friends, to culture, to entertainment, to ideas, to the entire world. But the internet doesn't just bring the world to us; it also brings each of us to the world.


As creators and as consumers, each of us should be free to participate and prosper online.

Sorry, trick question -- both sections are from Arts + Labs.

Anyway, what is more curious is that "The ArtLab" blogroll links to sites like TechCrunch, The Register, IP Democracy, Wired Threat Level, etc.

These are all blogs that have covered (and in some cases skewered) the efforts of telecom to filter the internet at the cost of network neutrality for the sake of appeasing big content. This is a brazen and sad attempt at blog diplomacy. It's as if DailyKos added InstaPundit to their blogroll in some effort to be increase bipartisan communication on the blogs. While commendable on some level, does anyone really think that the shills who are writing the blog are going to even mention what GigaOM has to say about Network Neutrality?

I'm not saying someone paid by the telecoms can't write blog posts linking to pro-network neutrality articles. That might even be a good thing. But what I am saying is that statements like this:

Arts+Labs is a coalition of Creative and Technology communities committed to a better, safer internet that works for both artists and consumers. At The ArtLab, we offer our information and ideas; our contribution to the conversation about the future of the internet.

come off as wholly disingenuous because Arts+Labs really represents the interests of a few corporations looking to end network neutrality. This is where the campaign is essentially astroturf and engaging in the kind of "fair and balanced" rhetoric that FOX News and Bill O'Reilly have pioneered. By putting links to blogs that sometimes carry critical (but not too critical -- no links to Slashdot or BoingBoing, mind you) opinions of telecoms they're trying give the false impression that they are interested in discussing things and engaging within a community.

They are not.

Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco (don't forget Cisco also makes and sells the routers to China that help block 'dissidents' from accessing western media) don't want to talk about network neutrality with you. They want to end network neutrality.

They don't want to think of you as the creators or the editors or the musicians. No, Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco, think of you as the consumers. Why else would they have a page of "creativity" and only link to content friendly and corporately funded startups sites like NBC, MTV, and Comedy Central?

Why don't they have Wikipedia, YouTube, or Flickr on there?

Its because those sites wouldn't have existed in their view of the Internet. In Arts + Labs' universe there is no amateur as creating professional media. There is no free culture, no free exchange of content, and no network neutrality. Their Internet is a Premium Content Destination® where we stayas consumers and they stay as the producers.

Notice, also, how in the above screen shot how they distinguish between "Creativity Online" and "Premium Sites." This is a common tactic when arguing against network neutrality. Content company incumbents like to argue that abolishing network neutrality will encourage development of "premium" content channels on the Internet. That sounds good, right?

But what happens when Wikipedia gets classified as "premium" content and local ISPs, users, and most destructively, the Wikimedia Foundation, all have to start paying premium rates to reach their audience? That's not so good. Wikipedia runs on a shoe string and would likely not be able to raise the exorbitant fees that big telecom would ravage them with. Who knows, maybe it would be time for Encarta to make a comeback. Surely, Microsoft has enough money to pay AT&T to push Wikipedia off the net.

So until Art + Labs adds Wikipedia (or some other actual source of creativity online) to their list of "Creativity Online" I'm classifying this campaign as 100% astroturf.

(photo of Astroturf by Scott Ogle under a Creative Commons 2.0 Attribution License)