The political rebuke of the aging republican party that followed in the presidential election of 2008 signaled a changing of the guard in the political landscape signified by the death knell of the red scare.  Less about one political party over another, the future will likely show this to be a contest more based on generations then ideology, and for the observant student of copyfight culture, this moment also marked a growing change in the attitudes towards the very concept of an artistic or creative copyright.

Our parents lived under the constant fear of Soviet missile strikes.  They watched as communists swarmed into Korea, as a Marxist revolution consumed China, as Cuba became a threatening pawn of the USSR, as the United States was routed in the jungles of Vietnam by Communist revolutionaries.  These clear and present dangers offered a simple shorthand to inspire political loyalty among the masses: if you don’t want to be consumed by the Commies, you better not vote for the other guy.  

However, the voters that ushered Obama into office came from a newer generation, unexposed to the grand Socialist fears of the 50′s and 60′s.  Republican or Democrat, Liberal or Conservative, if you’re in your mid 20′s to late 30′s, you are part of a generation that watched the Soviets get their asses handed to them in Afghanistan.  You saw the USSR fall into disorder and fracture under the weight of their own oppressive central government.  You watched Rocky Balboa beat the piss out of Ivan Drago. 

Socialism and Communism are not a grand conceptual evil for today’s generation and that shift in the language of communal fears has defined a sea change in politics.  Coincidentally, there has also been a generational change in the attitudes towards copyright fueled by massive advances in technology.

We are now able to remix and sample classic recordings, to alter photographs and art, to capture and re-edit broadcasts while using the internet to distribute our creative tinkerings to the entire planet.  Technology has lowered barriers in cost and knowledge, allowing anyone with a computer to become an artist, a distributor or a pirate at their own whims.  In many ways, this ease in remixing creativity has decreased the appreciation for both the effort expended by an original artist and legal rights they retain.  Music sampling artists can piece together amazing juxtopositions of musical works and have no practical knowledge of how to play an instrument or record a single sound.  Graphic artists can use Adobe Illustrator’s live trace to convert a snapshot into a finished vector artwork without understanding the basics of beziergons or color printing separations.  Web publishers can set up a blog and aggregate content from across the internet to produce a finished website without ever writing a single word of content or a single line of code. 

When a recording session cost tens of thousands of dollars, it was not financially viable to create a song without first clarifying the creative rights to the underlying work, but the near-elimination of cost as a barrier to creating music has created a situation where it is more advantageous to create first and clarify later.  It is the same across internet publishing, graphic arts and motion visuals.  Without question, this has ushered in an era of unbound creativity for the average citizen where any person with a computer can create a self-described masterpiece.  

Is that good on a human level?  I can say without question that it is, but ultimately the damaging aspect of these copyright violations is really the unbound distribution, not the unbound expression.  It is the unrestricted distribution that diminishes the value of an originating work, but with the internet providing the worlds largest free distribution system, there is essentially no method to prevent this willful dilution.  Is this acceptable or is it an unfortunate consequence of our modern age?

Further compounding this general lack of respect for individual creative rights, there is also a growing and pervasive culture of software piracy across the world.  We live in an age where the tools that enable creation are intellectual in nature rather then physical, so how can we expect a generation of creative people to actively choose to respect software licenses when they don’t even respect the creativity of their fellow artists?  Hardware costs are unavoidable, but software is now viewed almost as a tax to be avoided instead of a tool to be purchased.

The unasked question looms large: are intellectual property rights outdated?  If they are only respected at the mouth of an army of lawyers, then what sort of a right is actually possessed by the average citizen of modest means?  If the only redress of an infraction is a lengthy, protracted and expensive legal battle, are the laws in existence for individuals or corporate interests?

This post began with a quick recanting of the 2008 Presidential election because in many ways, this sampling culture is exemplified in the “Hope” portrait created by Shepherd Fairey, which was revealed recently to be based largely on a photograph by Mannie Garcia and claimed to be a violation of copyright by the Associated Press.  (Recent news proves that the true legal ownership of the original image is still very much undetermined, further lowering the merits of the AP’s already shaky claim.) 

The “Hope” portrait became an iconic symbol for millions of supporters of Barack Obama, who absorbed and adopted the image without question of its origins.  The image was created by an artist who has repeatedly appropriated the artistic content of others, who has created derivative images based on the art of others, an artist who has made his career in occasionally remixing copyrighted works while suing other artists to prevent them from infringing upon the copyrights he has claimed.  Fairey made his name by essentially taking Andre the Giant’s likeness and plastering it across the universe.  When he was an artist of modest means, it was morally acceptable to disregard copyrights and the rights of publicity, yet when he became a money factory with a legal team, he quickly chose to begin excercising copyright laws in his favor. 

For a quality, in-depth analysis of Fairey’s creative transgression, read this article by Mark Vallen and this one by Liam O’Donoghue.

The Hope portrait is an icon not only of a president and an election, but also of an icon of the cultural change in copyright attitudes.  The modern nature of creative ownership is exemplified in the portrait and shows the conflict of control inherent in an emerging generation of artists who often borrow to create, distribute freely to gain fame, but when the creative work to be borrowed is their own, they often wish to prevent others from doing the same.

Is the portrait Fair Use?  Almost without question it is, but it must be asked that without the underlying photograph to create the basis for the portrait, what was actually created by the artist?  Beyond a color scheme, the deletion of the background and a single word of text, there was essentially no other alteration of the original image.  Does that devalue the final work, and does the final work devalue the original photo?

Somewhere in this remixing culture, there must be a compromise of creative control.  Unfortunately, I believe that this compromise must be a cultural one rather then any legal solution.  The laws are already tilted towards litigation rather then clear application, so any compromise among the creative community will likely be based on common creative principals rather then common rights.  The trick is in defining what our generation actually believes is right and wrong.  In many ways, that might be an area that is still quite undetermined.

Click to see a larger version

While I was getting ready to snap a picture of his paint-encrusted boom box, he noticed my camera and paused his conversation.  

“Hey, hey, my man with the camera…you can’t shoot this”

He proceeded to indicate that I could not take pictures of his artwork on display, to which I quickly responded that I was actually taking a picture of his boom box.  He conceded that I would be able to shoot the boom box and continued with his conversation.  This interaction annoyed me to a degree because I often find that artists don’t really have a very strong understanding of their legal rights, and often that fundamental lack of knowledge leads them to believe they can assert rights they don’t always possess.

In this case, the artist did have a point that I intended to respect, and that is the right of reproduction.  

An artist maintains the copyright and exclusive right to reproduce the work they create.  The tricky aspect of this legal right for a photographer, is that the act of taking a picture of a painting in this case can constitute a reproduction regardless of whether or not you upload it to the internet or create prints.  By even taking a picture, you have recorded the work and reproduced it essentially without authorization which does constitute a violation of copyright law.  

In this sense, an artist can assert the right to prevent you from displaying or distributing their work without authorization.  Whether or not an artist can prevent you from actually taking a snapshot is a bit more of a grey area, but if your intended use is personal and private, there would immense legal hurdles involved in an artist asserting a violation caused by your personal and private use.  To further complicate the legality of reproducing a work of art, the concept of Fair Use allows for the use of copyrighted works in limited scope. 

I believe it is reasonable for an artist to have a conversation with a photographer who is taking pictures of their work in order to inform them of their legal rights, perhaps even reasonable to request that they not take pictures that could infringe upon the artists rights.  That being said, I do believe it is reasonable to expect that discussion to be framed as a dialogue between artists instead of a heckling shout of “no no no, you can’t do that”.  As a photographer is a potential peer in the artistic community, this type of discussion can present a valuable moment to teach another artist of their own creative rights through the assertion of your own.  If the conversation is framed in a constructive way, you can introduce a solid understanding and respect for artistic rights instead of coming off like yet another mall-cop sticking your hand in front of someone’s lens.

It has to be said that the painter in this situation did act with respect and did not request anything other then that I not photograph his art which was never my intention anyway.  The picture of him speaking above is an example of my rights as an photographer to capture any person in a public space who does not have a reasonable expectation of privacy.  He could request that I not take a picture of him (which he didn’t), but he would have no legal standing in order to enforce that request. 

The picture of the boombox below is again an example of my rights as a photographer, as the object is not an artistic work, but is instead an item of utility found in a public space which I am well within my rights to capture and distribute.

Click to see a larger version

Add commercial gain to the equation and the water becomes much more murky with the issues of model releases and right to publicity, but the shorthand solution would be to consult a good lawyer and obtain all the permissions you’d think you might need if you intend to sell an image either to the public or to a company or publication.  Truth be told, if you’re at the point where you’re about to profit from selling your photography, you’re at the point where you need to start seeking legal council anyway.

For further reading on your rights as a photographer (in the United States), please visit these links:

• Bert P. Krages II – Photographers Rights Pocketguide
• Standford University Libraries post on Fair Use
• Dan Heller’s exhaustive post on the Photos of Trademarked and Copyrighted works
• World Intellectual Property Organizations’ document on Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People
• http://www.copyright.gov/

For some generally good (though overly self-righteous) writing on the rights of photographers, visit Thomas Hawk’s Digital Connection.  Take him with a pound of salt.