Ruling Imagination: Law and Creativity

Photos of facts, redux

pfriedman — Wed, 09 May 2012 15:44:50 +0000

I’ve discussed before in connection with photography in general and Shepard Fairey’s Obama Hope poster that photography is entitled to copyright protection only to the extent it does something more than convey “facts” of the world, but there’s a particularly interesting discussion of this matter over at techdirt (via NEWSgrist):

Sometimes Photos Are Just Facts, And Copying Is To Be Expected

Scientific American photography blogger his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild’s attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what’s appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant: [see image above]

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.But Wild’s work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren’t covered by copyright, and that’s not just a legal nuance, it’s a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn’t mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don’t get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledgeof what the ant looks like, and indeed the photo contained very little beyond that to begin with. It’s a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph’s subject, which Wild didn’t create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that’s no reason to feel hard done by.

So I don’t think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he’s still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.That’s a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn’t entirely made up. I hope that, on further consideration, he’ll realize that this is something even more basic than artistic inspiration—it’s a proliferation of knowledge about the natural world, and one that shouldn’t make him feel like a chump at all.

Distasteful, insensitive, insulting, and totally unacceptable? Sure, but it’s PROTECTED EXPRESSION!

pfriedman — Thu, 09 Feb 2012 03:17:32 +0000

Is it vitally important to protect the freedom of expression, which enjoys by far its widest scope under U.S. law? Well, here’s a little story about what can happen when people (not governments) decide they don’t like what’s being expressed:

In 2006, the Danish tabloid Ekstra Bladet investigated the links between the Icelandic bank Kaupthing and tax havens. Kaupthing’s managers did not like what they read, but failed to persuade the Danish press council that the paper had done anything wrong. The bank sued for libel in London instead. The newspaper pulled the articles and apologised because English lawyers ran up costs that were beyond its editor’s worst nightmares – £1 million, and that was before a case had gone to court.

Kaupthing went for the paper in England not just because it wanted to kill the original story, but because it also wanted to deter others from spreading the idea that Iceland was not a safe place for investors. The English legal profession obliged. Newspapers’ lawyers thought once, twice, one hundred times before authorising critical stories. A few months later Kaupthing collapsed – along with the other entrepreneurial, go-ahead Icelandic banks – and British depositors lost £3.5 billion. By allowing libel tourists to fly to London and use our repressive laws, the English legal profession had also stopped the British investors from learning of the danger in investing in the country’s banks.

You no more hear writers and broadcasters admit that they are frightened of investigating investment banks than you hear them admit that they are frightened of challenging the founding myths of Islam. We cannot puncture our own myth that we are fearless seekers after truth, even though, if we honestly owned up to our limitations, we might force society to confront the fact that modern censorship does not conform to old models. It is a mistake to think of repression as repression by the state alone. In much of the world it still is, but in Britain, America and most of continental Europe the age of globalisation has done its work, and it is privatised rather than state forces that threaten freedom of speech.

This passion for freedom of expression is part of what drives my passion on behalf of appropriation artists and against Patrick Cariou in his copyright infringement case against Richard Prince. One of Cariou’s purported motivations in bringing the lawsuit was to vindicate the offense taken by the Rastafari (the subjects of Cariou’s photographs that were appropriated by Prince) at Prince’s images. As the Caribbean Rastafari Organization put it in its “Statement of Protest and Demand for Cancellation” of Prince’s exhibit:

[Prince's exhibit] is egregiously disrespectful of Rastafari culture and peoples, and reflects racial stereotyping that is morally offensive and that has no place in the 21st century. So-called artistic license cannot permit the trivialization and abuse of a people still marginalized by race and gender to evoke images of subordination and exploitation of Africans and women. This is a legacy of the European colonial enterprise that continues to have a negative impact on African peoples in the Americas and it is a legacy that the Rastafari have resisted and condemned for nearly 80 years. Rastafari at the vanguard of Pan-African Liberation ceaselessly demanding justice based on truth and right, find the Canal Zone exhibit distasteful, insensitive, insulting and totally unacceptable.

I am willing to accept entirely the characterization of Prince’s work as “distasteful, insensitive, insulting, and totally unacceptable” and still believe that under U.S. law those qualities supply no basis on which to suppress his work, either directly on behalf of the Rastafari or because such work is less deserving than any other sort of expression of First Amendment protection (and therefore deference even in the face of a copyright claim). For god’ sake, the First Amendment protects the rights of Nazis to march through a community full of Holocaust survivors. In comparison to the offense even the most sensitive of Rastafari must take at Richard Prince’s “Canal Zone” series of photographs, it surely pales at the injury suffered by a Holocaust survivor required to tolerate the march and rally of a group of Nazis outside his home in the middle of Illinois. See also the ACLU on the Nazis’ rightto march in Skokie, Illinois.

Nor is it stretching a point to compare the use of British libel laws to shut down truthful reporting about dishonest financial dealings to the use of copyright infringement lawsuits to censor speech we’d be better off hearing. I’ve written more than once about private interests shutting down critical speech they don’t like.

I cannot emphasize this point enough. Cariou himself is not the only artist who believes appropriation art is illegitimate. Artists who believe that are undercutting their own souls. As Judge Alex Kozinski once wrote in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,”:

[I]t may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it.

White v. Samsung Electronics America, Inc., 989 F.2d 1512, ¶20 (1993).

Roy Lichtenstein, Image Duplicator (1963)

pfriedman — Sat, 04 Feb 2012 18:35:45 +0000

Girl Talk: If they passed out paints on the street for free, I’m sure there’d be a lot more painters.

pfriedman — Thu, 02 Feb 2012 15:00:57 +0000

They’re trying to make it illegal for you to respond to the imagery your bombarded with every day.

pfriedman — Thu, 02 Feb 2012 03:11:41 +0000

From NEWSgrist comes the sad news of Mike Kelley’s death, along with a very interesting interview of Kelley conducted by Glenn O’Brien. An excerpt:

GO:?I’ve remembered an event and thought I’d said something when actually it was somebody else who said it or vice versa. I think, especially in writing, so much of plagiarism is completely unconscious.

MK:?I have experienced that often. I’ve stolen ideas, and people have stolen from me. I’m all for it. That’s the way things get created. That’s how culture grows. When there’s an amazing idea, you take it and run with it. I mean, you’re going to take it someplace else than the source anyway. There are a lot of artists who’ve worked at that specifically. One of my favorite writers is the Comte de Lautréamont, and much of his writing is constructed from plagiarized texts. Who would claim that his work is no different than what he plagiarized?

GO:?One thing that the Internet seems to be doing is eroding the idea of copyright and originality. People are just taking bits of things and using them in a very free way.

MK:?That’s great. And the corporate entertainment industry is trying to stop it from happening. Think about it: Andy Warhol could not have a career now. He would be sued every two seconds.

GO:?It’s given a lot of work to the lawyers.

MK:?Copyright laws are terrible for culture. It’s illegal to respond to the imagery that surrounds you; you’re bombarded every minute of the day with mass-media sludge. It should be the opposite: Everybody should have to respond to it. This is what should be taught in the public school system.

William S. Burroughs should be a major role model: All students should be given tape recorders and cameras to constantly record the gray veil that surrounds them, so that they can recognize that it’s even there-and manipulate it. Most people are not aware of the white noise they exist in. Tape recording and photography allowed people to become aware of what was invisible to them for the first time. We’re surrounded by invisibility. That’s what I think art can do-make things visible.