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.”

Google Now Selling Virtual Ads on Real Real Estate

Last year I posted on Google modifying representations of reality (Streetview) and hypothesized about the potential problems. Now we have a potential real world test case as Google might be selling advertisements inside Google Maps:

This patent, which was originally filed on July 7, 2008, describes a new system for promoting ads in online mapping applications. In this patent, Google describes how it plans to identify buildings, posters, signs and billboards in these images and give advertisers the ability to replace these images with more up-to-date ads. In addition, Google also seems to plan an advertising auction for unclaimed properties.

Read more at RWW.

A Spoon Full of Penis^H^H^H^H^H Audience Makes the Public Domain Go Down

I’ve been working as a photographer for MoMA’s PopRally for the last year or so and it has quickly become one of my favorite live events to work for. Last Tuesday was “PopRally: Silent But Deadly“, and the evening’s entertainment would come in form of comedy from and about public domain films. Max Silvestri, a friend and comedian I booked for a Creative Commons Salon was the MC for the night and started off the evening explaining how he was planning on curating MoMA’s Department of Internet Funny Pictures. Above, you can see him highlighting a photo he found on the Internet of a snow penis made in a pickup truck.

What was so special about Tuesday (besides the fact that I took the time to read the instruction manual for my flash prior to showing up) was that MoMA packed the house showing restored mostly-public domain silent films with live improvised piano accompaniment by Ben Model. If you’ve ever watched a silent film, this should surprise you.

On top of that, MoMA featured awesome remixes of those films afterwards. Having taken a couple of film classes and fancying myself a basic appreciation of the history of photography, I know why silent films are historically important but I’ve always had a hard time actually sitting through them. I’ve occasionally downloaded some from the Internet Archive, but never found them particularly engaging or watchable.

But sitting and laughing with the audience at MoMA, I finally understood the appeal of the silent film — it was the presence of an audience affirming and interpreting the screen that allowed me to enjoy it. Since there was no dialog, we, the audience, had to create and share what we thought was happening on screen with our laughter and reactions.

In other words, you’re not supposed to watch silent films by yourself; they require group dynamics to really come alive. This may apply to contemporary film, and may be a reason year after year, Hollywood still breaks box office records despite panicked proclamations that the sky is falling. Theater experiences are highly rivalrous and I think this PopRally really demonstrates why theaters and real live audiences are still very important.

My favorite part of the evening were the remixes that various comedians were commissioned to do. They make less sense without first seeing the original films (none of which seem available online in their entirety), but here’s one that I think definitely works by Joe Mande:

The Knockout: 15 Years Later from Joe Mande on Vimeo.

If you’re not already signed up for PopRally, do not hesitate to join their mailing list, and buy your tickets early because they almost always sell out.

(The ^H’s in the title of this blog post are explained here.)