A Search for Comity in the Intellectual Property Wars: symposium at The New York Institute for the Humanities at NYU, April 28-30, 2006 [slides, audio, transcripts]
DENVER
-- The manner in which copyright law is being applied to academe in the
digital age is destructive to the advancement of human knowledge and
culture, and higher education is doing nothing about it.
That is
what Lawrence Lessig, the Harvard University law professor and renowned
open-access advocate, told a theater of higher ed technologists
Thursday at the 2009 Educause Conference here. In his talk, Lessig
described how digital and Web technology has exploded the conditions
under which copyright law had been written.
“If copyright law, at its core, regulates something called ‘copies,’
then in the analog world… many uses of culture were copyright-free,” he
explained. “They didn’t trigger copyright law, because no copy was
made. But in the digital world, very few uses are copyright-free
because in the digital world … all uses produce a copy.”
The
paradigm for copyright law enforcement emerged out of this "analog
world" as a way of ensuring authors were remunerated for their
contributions to culture, thereby creating an incentive to make further
contributions and drive the progress on human art and discovery
forward, he said.
Times have since changed, said Lessig, but the letter of the law hasn’t.
Copyright
law was originally intended to protect those who create for profit
(Lessig used the example of recording artist Britney Spears). But
academics also create original works, he said, and they are — or should
be — motivated by a desire to advance human knowledge, not line their
pockets. Therefore, sealing their work behind copyright barriers does
no social good.
“If there’s a business model of science, or a
business model of education,” Lessig said, “that depends upon sharing,
depends upon sharing resources in common and that builds upon that
common set of resources — how does the paradigm case help that business
model?”
It does to an extent, Lessig allowed. Absolute open
access does weaken the incentive to create insofar as scholars crave
some tangible remuneration for their commercially published works. The
solution to the problem, he said, probably lies in hybrid systems such
as Creative Commons, of which he is a board member. Creative Commons
licenses allow authors to designate what portions of their work can be
copied and how it may be used, thereby avoiding the “thicket” of the
copyright system — where, Lessig said, things are never nearly that
simple.
Lessig cited several examples of how copyright law in academe has
hampered the pursuit of knowledge: neurologists who were unable to
aggregate data for a large-scale brain-mapping project due to copyright
restrictions; filmmakers who faced staggering costs re-clearing
copyrights on images they used in a civil-rights documentary series
when they wanted to release it on DVD. He even recounted a recent
incident in which he had been using a medical information Web site to
try to diagnose his ill daughter, when he noticed a note that said
portions of an article he was reading had been redacted under copyright
law.
“What we need to do is to act to avoid this thicket,” he
said, “at least where it’s clear this thicket doesn’t give us anything
good.”
Academics — presumably stakeholders in the effort to
advance knowledge — have been uncharacteristically and disturbingly
silent on the copyright “insanity” that has befallen the information
trade, Lessig said.
“We should see a resistance to imposing the
Britney Spears model of copyright upon the scientist or the educator,”
he said. “…But if you would expect that, you would be very disappointed
by what we see out there in the scientific and and education
communities.” Scholars, he said, have allowed the copyright
conversation to be steered by lawyers and businesses who are not first
and foremost to intellectual discovery.
To them, Lessig delivered a simple message: “Stop it.”
By
Brian Droitcour
on Wednesday, June 24th, 2009 at 10:00 am.
Image: Shane Hope, Copylution, 2009
Shane Hope’s sprawling prints
can’t be processed with one or two looks. They are built on thousands
of tiny details, rather than around a single focal point, and as the
eye travels across the picture field, it sees lines and pieces
accumulating in recognizable bodies and then collapsing into chaos, or
maybe an order that can’t be discerned by the naked eye. Hope calls
them Molecular Modeling prints, or “Mol Mods,” and they are informed by
his belief that “the molecule is the brushstroke of the future”—that nanotechnology,
the manipulation of matter on a molecular scale, will transform
industry sometime soon. For now, Hope’s tools are coding languages
Python and Perl. Because of the Mol Mods’ size he can only work on one
screen-sized swath at a time, and because of their complexity, that is all that can be rendered even on Hope’s homemade desktop, which
he proudly calls "faster than any factory-built Mac on the planet.”
“Your Mom Is Open Source,” an exhibition of Hope’s work at Winkelman Gallery
that opens Friday, features Mol Mods as well as the series
“Compile-A-Child,” imagined school assignments by artificial kids (only
the latter are reproduced here, because the Mol Mods lose too much when
shrunk to bloggable dimensions). Hope’s art is a visual analogy to hard science fiction,
a genre where authors base their narratives on projected technologies
rather than transposing contemporary dramas to a fantasized, futuristic
stage. For viewers poorly versed in hard sci-fi, the conceptual
platform of Hope’s work can be opaque; the announcement for “Your Mom
Is Open Source” concludes with a mystifying list of keywords, both of
his own coinage and borrowed from the fields of his interest. Hope
agreed to discuss some of them here.
Image: Shane Hope, mehums are going, 2009
Singularitarianism
In an analogy to the breakdown of modern physics near a gravitational singularity, Vernor Vinge defined the Singularity
as a theoretical future point which takes place during a period of
accelerating change sometime after the creation of a superintelligence,
an artificial brain more intelligent and creative than the human mind.
Hard sci-fi authors, as well as professional forecasters, realized some
two decades ago that nobody could realistically write about anything
occurring past this Singularity. Far-flinging extrapolations could be
flung no further. Simply put, they realized that we were inching toward
inventing the next inventors and couldn't presume to imagine their
imaginings. Futurological films and other envisionings became sort of
mostly doomed to deploy dystopic dramatic drivel—a.k.a.
disasterbation—because it's plainly more possible, however implausible,
to picture a future having fallen into decay than having been
sustainably built. An exponentially divergent Posthuman technocracy
couldn't necessarily be pictured as a trompe-l'œil, for it was as
likely that everything would be powderized into fuzzy storms of
computational matter as it was that advanced augmentations would
invisibly piggy-back upon what looked no different from the current
everyday reality.
Transhumanism
A Transhumanist actively trend-spots technological trajectories with
special emphasis upon feasible applications toward radical yet
relatively safe human enhancements. A Transhuman proper accelerates
artificial selection by early-adopting resultant enhancements, thereby
willfully functioning as bio/non-bio sub-species set on transitioning
into a Posthuman. A Posthuman is post, that is to say no longer strictly human... i.e. Homo evolutis. A vitally important take-away assumption of all this: Clearly, we go from growing ourselves to building ourselves.
Image: Shane Hope, To be Imortel, 2009
Nanofacture
Nanofacture, aka Molecular Manufacturing / Assembly, is atomic-scaled
precise fabrication of, well, ultimately just about anything. Rapid
dissemination of this capability could catapult our kind into
post-scarcity, i.e. by printing printers. Basically, by developing
nanofacturing, we teeter toward twisting objects (and life) into
existence at ever smaller scales. The precision placement of atoms is
poised to become the new pen, conflating or at the very least
problematizing pictorial representation and objecthood.
Compile-A-Child
If you know where/how to look, you'll discover that some of the more
awe-inspiring contemporary hard-sci-fi speculations regarding
superintelligences involve not so much disasterbatory apocalypses nor
runaway self-replicating molecular machines, but rather accounts of
augmented children. Additionally, AI field experts now posit that the
first artificial general intelligences will aptly be raised in online virtual worlds. And of course, there's Marvin Minsky's
answer to whether AIs will inherit the earth: "Yes, but they will be
our children." True, we routinely will all to our descendants. The more
important latent point here to consider is that we ought to take great
care in birthing/building these mind-children. AIs will arise
in any case. The good news is that, in the wake of this understood
eventuality, plenty of investigations now underway aim to proactively
explore issues of machine morality in order to precautionarily engineer
friendly AIs.
Image: Shane Hope, Substrate Colocation, 2009
Transubstrational
Not certain I've coined the term “transubstrational,” but I use it to
concisely communicate the likelihood of living/thinking/existing in or
across substrates. By substrate, I mean the material within or upon
which our default, for now human, general intelligence system operates,
i.e. biology. As we technologically augment ourselves, we'll
ontologically wiggle our way out of the current default substrate of
biology and into/across novel material structures. Most are warily
familiar with the concept of uploading, that is, the transfer of a
personality from the biological human brain to a suitable synthetic
computing device in order to allow easier upgrading of intelligence,
self-modification, and backup of the self. To counteract the
reactionary yet somewhat justifiable concern over what could be
considered an essentialization of our ridiculously complex human
personalities, some amend that uploading will be gradual, almost
unnoticeable, proceeding update by update, right up until we upgrade.
Personally, I prefer to explain it in this willful way: We will think our way across.
In
response to the many complex issues relating to information and
ownership in the digital age, Iona College will host its inaugural
Conference on Intellectual Property (CIP) from June 12-13, 2009. The
conference, which will feature more than 30 scholars from Africa, Asia,
Europe and North America, is open to the public and will explore
intellectual property in a cross-disciplinary setting, as both a
concept and as a reality in numerous academic and professional fields.
New Rochelle, NY (PRWEB)
June 5, 2009 -- In response to the many complex issues relating to
information and ownership in the digital age, Iona College will host
its inaugural Conference on Intellectual Property (CIP) from June
12-13, 2009. The conference, which will feature more than 30 scholars
from Africa, Asia, Europe and North America, is open to the public and
will explore intellectual property in a cross-disciplinary setting, as
both a concept and as a reality in numerous academic and professional
fields.
The conference will feature keynote addresses by Laura M. Quilter,
an attorney and researcher in technology and information law and
policy, and Joy Garnett, a painter who appropriates news and
documentary photographs from newspapers, the internet and other media
and re-invents them as paintings.
Calls for papers on intellectual property were sent out last fall,
and a number of papers were selected from those submissions. Following
the conference, the organizers plan to publish an edited volume of
papers on the topic.
"There is a vast amount of research and discussion on intellectual
property and its implications in academic and professional situations,"
said Amy D. Stackhouse, Associate Professor of English at Iona College,
who is organizing the conference. "This conference is a chance to
examine the issues across the disciplines, enabling us to learn from
one another and further our progress in this ever-changing world of
information."
Fees for the conference are $125 per person with academic
affiliation and $165 per person with non- academic affiliation.
Accommodations are available on-campus for $85 per night, or at the
Radisson in New Rochelle for $129 per night. For complete information
or to register, visit www.iona.edu/cip.
Founded in 1940 by the Congregation of Edmund Rice Christian Brothers,
Iona College is a private, coeducational institution of learning in the
tradition of American Catholic higher education. Iona, currently listed
in the US News and World Report's annual "America's Best Colleges 2008"
and The Princeton Review's Best Northeastern Colleges 2008 edition,
offers undergraduate degrees in liberal arts, science, and business
administration, as well as master of arts, master of science and master
of business administration degrees and numerous post-graduate
certificate programs.
I was lucky enough to catch Larry Lessig's talk "Copyright Wars," at the Sophiensaele on my last night in Berlin. It was sponsored by the Heinrich Boll Foundation.
I finally got a chance to watch this great documentary on my flight home from Berlin yesterday -- perfectly fitting after participating in the ECLA State of the World Week conference on the Politics of Cultural Ownership, and then catching the surprise talk by Lessig at the Sophiensaele along with some of "my" students on my last night in town.
(I'll be remixing some screen grabs from this film for my powerpoint keynote at Iona College's inaugural Conference on Intellectual Property in June -- more on that soon!)
When it comes to remix culture, copyfight and crowd-sourcing, Brett
Gaylor walks the walk. The director of “open source documentary” RiP: A Remix Manifesto
released his feature-length film under a Creative Commons license and
even adopted Radiohead’s name-your-own-price business model when he
made the movie available online.
“We’ve gone to really great lengths to make this film as accessible
as possible,” Gaylor explained in an e-mail interview conducted after
announcing the download Monday. “It’s already on the Pirate Bay, and
that’s great — it’s another delivery format. We didn’t put it there
ourselves, though; we didn’t need to. Had we gone that route, it’s
fairly likely, given the realities of the film-distribution universe,
that we wouldn’t have these other opportunities to get the film to
people who still watch TV, rent DVDs or go to movies, which is, in
fact, most people. We wanted those people to watch this movie.”
Featuring mashup artist Girl Talk and luminaries like Lawrence Lessig, Gilberto Gil and Cory Doctorow, RiP: A Remix Manifesto debuted in Amsterdam and Canada last year and in North America last month. It opens theatrically Friday in New York.
The movie’s compelling analysis of sampling, sharing and
copyfighting was pieced together over six years, during which Gaylor
shared his raw footage with other filmmakers, some of whose remixes he
spliced into the film. Given the realities of remix culture, where
there is no such thing as a final cut, Gaylor subsequently offered the
movie online as a remix experiment at Open Source Cinema, which he founded and beta-launched in 2004.
Since then, the little doc that could has nabbed awards, screened at
panels and walked the tightrope between theatrical and internet
distribution, original art and open-sourced amalgam, without falling
off.
Gaylor talks about copyfight crusaders, the trials and tribulations
of the distribution war, and the joys of messing with the media.
RiP: A Remix Manifesto director Brett Gaylor asks fans to pay what they will for his downloadable doc. Photo: Mila Aung-Thwin
Wired.com: The pay-what-you-want initiative makes
perfect sense for this film, but I’m betting it wasn’t easy to pull off
from a business perspective.
Brett Gaylor: It’s been a peculiar road to get to
the point where we could release the film as a download, because
obviously this is something we wanted to do right from the get go. But
since we have so many partners that helped us make the film, including
theatrical and television distributors, it was a delicate balancing act
to make sure the good faith they showed in making the film would be
rewarded, that we wouldn’t undercut their efforts to promote and recoup
on the film by giving it away. So we waited a while before launching
the various online permutations. The National Film Board [of Canada]
put up a chaptered version during our U.S. premiere at South by
Southwest in March, and we embedded calls to action into each chapter.
Around SXSW, we partnered with two American partners —
Disinformation for our DVD release, and BSide for the theatrical side
of things. And at the first meeting I had with them, it became clear
that we needed to go down this road. We knew the film would appear on
file-sharing networks immediately and we knew the audience for the film
wanted and expected it to be online. So knowing that, we wanted there
to be a method for those who wanted to pay to do so.
Wired.com: Are you satisfied with the arrangement so far?
Gaylor: It’s still not moving as fast as I’d
ultimately like. The pay-what-you-can is at the moment just available
for those in the U.S., while some of the other world territories do
their thing theatrically or on DVD. And we, being the National Film
Board of Canada, and our production company EyeSteelFilm, want those
territories to be able to have a chance to define their own business
model, so it’s fair. Its been a lot of tricky e-mails.
Wired.com: How has the theatrical run gone, and how are you feeling about the New York City opening?
Gaylor: The theatrical run so far has been amazing.
In Canada, it played literally coast to coast, and there is something
immensely satisfying as a filmmaker to see your film’s title on a
marquee and have people watch it together on a big screen. We went to a
lot of lengths for it to work well in that format; it’s got big sound,
beautiful graphics and animation, and the cinematographer Mark Ellam did an amazing job.
It’s also really challenging to engage the public in theaters,
because you’re playing your film to this broad demographic. We had
people in the lineups at the AMC trying to decide if they’d go see Benjamin Button
or this crazy copyright remix movie, so that was a surreal pleasure. It
also generated a ton of press for the film, mostly great, but the film
enraged the right-wing papers in the country who took a lot of umbrage
with its central themes.
Battle lines over free culture are drawn in this RiP collage, entitled Copyright vs. Copyleft.
Wired.com: Tell us about the New York screening, which coincides with a panel from the Open Video Alliance about standards and practices.
Gaylor: We’re doing a sneak preview on Friday and
then following up with the launch at the Open Video Conference, which
I’m extremely excited to participate in. I was part of the initial
planning sessions for this group back in the fall, and it really feels
like a culmination of all this disparate work that has been going on in
the free culture world for years. Filmmakers, free software geeks,
remixers, lawyers, academics — all these different people who have been
working on these parallel tracks are starting to feed their work into
one another, and I find it incredibly inspiring. So it will be an honor
to show the film there. It’s a tough crowd, too!
Wired.com: What are your thoughts on the future of open video?
Gaylor: I’m generally optimistic about it. There
are a lot of challenges, for sure: Lack of universal standards,
third-party rights, bandwidth, access for the developing world, and a
lack of basic media literacy among users. On the flip side, I think the
internet will very quickly overtake TV as the content-delivery medium
of choice, and with that comes the opportunity for a genuine
participatory experience. I think the time is now for developing the
tools, standards and practices to make sure we don’t just see TV 2.0.
Party music remix champ Greg Gillis, aka Girl Talk, fights the good copyfight in RiP: A Remix Manifesto. Photo: Andrew Strasser
Wired.com: Talk about working with Girl Talk’s
Gregg Gillis and Negativland’s Mark Hosler on this film and its various
openings. What role have both played in the evolution of remix culture?
Gaylor: Working with Gregg was a lot of fun. One of
the reasons I wanted to include him in the film is because he doesn’t
see himself as a copyright crusader. He’s a serious musician whose work
points out a lot of flaws, contradictions and challenges in current
copyright law. The fact that he’s been able to reach such a level of
success without a lawsuit has created a lot of elbow room for musicians.
When you think about Negativland,
which had a fairly major lawsuit filed against them over a decade ago,
it’s obvious that things are changing. Negativland had a huge influence
on my life. Watching it take such an intelligent, activist stance was
very inspiring, and you could tell they were taking such joy in fucking
with the media. It was something I looked at and said, “Yeah, I could
do that! I want to do that!”
Wired.com: How about Lessig and Doctorow?
Gaylor: Their writing put some meat on the bones,
and framed the debate for a whole generation of copyright activists.
For a lot of people, it was like suddenly realizing: “That’s what kind
of activist I am.”
Wired.com: You’ve said in your blog that
“theatrical distribution is a war.” Can you elaborate? And what does
internet distribution, legal and otherwise, offer in terms of an olive
branch?
Gaylor: It’s a war in that you have to do so much
to get the proverbial butts in the seats. It’s extremely costly and the
stakes are high, whereas I think the internet gives some opportunities
to speak directly to an audience. With RiP, we tried to have
the best of both worlds. It was important that folks who weren’t
exposed to these issues were able to see it, but we also wanted to try
and lower the friction as much as possible to those who were active
online and who would really see themselves in the film.
Wired.com: Now that you’ve made a film on these
issues, has your mind changed about intellectual property or ownership?
What’s the tightrope there?
Gaylor: The classic copyright ones: Providing an
incentive, while at the same time ensuring the public’s access to the
work. Ultimately, that’s what I, and most people in this movement, are
pushing for — a balance. So the film release was a lot more “free as in
speech” than it was “free as in beer,” because it was important for me
that average folks could see the film on TV or in theaters. And
eventually, after a limited term (measured in months!), the film will
fall into the public/pirate domain and be copied freely.
Wired.com: Do you envision a day when theatrical distribution is a dinosaur, and we’re all paying to stream films online?
Gaylor: We’ll see how I feel about that in a year.
The remixing is just starting to take off, and I envision a time when
these sorts of interactions will create an environment where a
theatrical screening is to filmmakers what live performances are to
musicians. The ability to create something unique for a particular
screening or event allows you to offer an added value to that audience
member, as well as have something unique that’s different from what you
can get on a DVD or online.
The celebrated "open source documentary" RIP: A Remix Manifesto
has found a progressive, forward-thinking distributor that is making
the film available as a download on a pay-what-you-want basis (alas,
the offer is US only, due to the insanity of the film industry):
It's been a peculiar road to get to the point where we could release
the film as a download, because obviously this is something we wanted
to do right from the get go. But since we have so many partners that
helped us make the film, including theatrical and television
distributors, it was a delicate balancing act to make sure the good
faith they showed in making the film would be rewarded, that we
wouldn't undercut their efforts to promote and recoup on the film by
giving it away. So we waited a while before launching the various
online permutations. The National Film Board [of Canada] put up a
chaptered version during our U.S. premiere at South by Southwest in
March, and we embedded calls to action into each chapter.
Around SXSW, we partnered with two American partners --
Disinformation for our DVD release, and BSide for the theatrical side
of things. And at the first meeting I had with them, it became clear
that we needed to go down this road. We knew the film would appear on
file-sharing networks immediately and we knew the audience for the film
wanted and expected it to be online. So knowing that, we wanted there
to be a method for those who wanted to pay to do so.
In the Fall of 2004, I was invited by Mark Tribe to kick-off a lecture series he had organized at Columbia University’s Digital Media Center, "Open Source Culture and the Arts." Other lecturers in the series included Jeffrey Cunard, Siva Vaidyanathan, Jon Ippolito and Cory Arcangel. The Media Center website has since been revamped, the Index to the lecture series deleted. Happily, they've been putting their archived videos up on Youtube.
From spring 2004 to fall 2004, leading new media artists, curators and
theorists discussed the exciting and diverse field of Art &
Technology to the students, faculty and staff of Columbia University.
All lectures were taped and made available online. The online
presentation of the lectures served as a measure of Instructor Mark
Tribe's students' understanding of each presenter's talk as well as its
place in the larger discourse of art and technology.
Great statement from Shepard Fairey on art, appropriation and fair use that speaks truth to power. I hope the haters who shout "plagiarism" will read it and think twice. The comments are fun too!
I'm sure a lot of people are wondering about my case with the AP
over the Obama HOPE poster. I can't talk about every aspect of the
case, but there are a few things I want to discuss and points I'd like
to make.
Most importantly, I am fighting the AP to protect the rights of all
artists, especially those with a desire to make art with social
commentary. This is about artistic freedom and basic rights of free
expression, which need to be available to all, whether they have money
and lawyers or not. I created the Obama image as a grassroots tool
solely to help Obama get elected president. The image worked due to
many complex variables. If I could do it all over again, I would not
change anything about the process, because that could change the
outcome. I am glad to endure legal headaches if that is the trade-off
for Obama being president.
No disrespect was intended to photographer Mannie Garcia, but I did
not think (and do not think) I needed permission to make an art piece
using a reference photo. From the beginning, I openly acknowledged
that my illustration of Obama was based on a reference photograph. But
the photograph is just a starting point. The illustration transforms
it aesthetically in its stylization and idealization, and the poster
has an altogether different purpose than the photograph does. The AP
photo I used as a reference, which I found out much later was taken by
Mannie Garcia, (which was actually this one,
not the one being circulated in the press) was a news photo that showed
George Clooney and Barack Obama attending a 2006 panel on the genocide
in Darfur. My Obama poster variations of "HOPE" and "PROGRESS" were
obviously not intended to report the news. I created them to generate
support for Obama; the point was to capture and synthesize the
qualities that made him a leader. The point of the poster is to
convince and inspire. It's a political statement. My Obama poster does
not compete with the intent of, or the market for the reference photo.
In fact, the argument has been made that the reference photo would have
faded into obscurity if it were not for my poster which became so
culturally pervasive. The Garcia photo is now more famous and valuable
than it ever would have been prior to the creation of my poster. With
this factor in mind, it is not surprising, that a gallery in NYC is now
selling the Garcia photo for $1,200 each. As I understand it, Garcia
himself did not even realize the poster was created referencing his
photo until it was pointed out to him a full year after the poster came
into existence. Mannie Garcia has stated in the press that he is an
Obama supporter pleased with the poster result.
I did not create the Obama poster for financial gain. The poster was
created to promote Obama for president, and the revenue from poster
sales was re-invested in more posters, flyers, stickers, etc.., and
donated to charity, including the Obama campaign. A free download of
the Obama image was available on my website, which should provide
further evidence of the desire to disseminate the image, not to benefit
financially.
Lastly, I m very saddened to see many people try to demean my Obama
poster as being "stolen" or that because I used a photo I "cheated".
As far as the idea of the image being "stolen", I would love to have
the clout to command portrait sittings from world leaders, but for me
and most artists out there, that is not an option. For lots of artists,
even licensing an image is out of the question financially. Should
artistic commentary featuring world leaders be stifled because of
copyright of the reference images even when the final artistic product
has new intent and meaning? Reference is critical to communication, and
in my opinion, reference as a part of social commentary should not be
stifled.
A writer asked me why I "didn't just draw Obama from my
imagination". My response was that I needed to make my image look like
Obama, who is not an imaginary character. I know few people who could
capture a convincing likeness of close friends or even their own family
members from their imagination or memory. I use my own family members
as models, taking my own photos of them to illustrate from - VIVI LA REVOLUCION and COMMANDA. Were Obama a member of my family I would have employed this technique.
Another suggestion someone made was "why not splice two or three
photos together and illustrate from that?" Well, though a direct match
would have been harder to find, with an image as popular as the HOPE
poster, internet sleuths would probably have found the references and
maybe I'd be facing two or three lawsuits. This leads to the next
question: is illustrating from a photograph "cheating"? I studied art,
illustration specifically, at one of the most prestigious art schools,
The Rhode Island School of Design. At RISD I was taught to draw from
life, to draw from photo references, and to appropriate and
re-contextualize imagery. All of these techniques had historical
precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos.
I have respect for, and have frequently collaborated with,
photographers, but I do not think permission, or a collaboration is
warranted in every case where an artist works from a photo reference. I
collaborate with photographers because I WANT to, not because I believe
I HAVE to. Usually, when I work directly with a photographer as a
collaboration, I do so because I am building upon, rather than
transforming their original intent. Of course, as with everything, the
definition of transformation and fair use is somewhat subjective. I'm
an artist, not a lawyer, so I'd prefer to see more latitude for
creativity even though I do respect intellectual property.
This case has raised many issues, including the use of references in
art. Some of my earlier works have been attacked by some as
"plagiarism". I think reference is an important part of communication
and it has been common practice in the art world. When I flipped
through the Christie's auction house catalog from November 2008 I found
many pieces that are based on reference or appropriation. Most are
selling for over $100,000. Some are more clever than others, but these
are all works that are at auction being taken very seriously. Take a look.
If the AP wins their case, every Obama art (or any other politician)
that was based on a photo reference that was not licensed would be
rendered illegal. Here are just a few that were an important part of
the political discourse during this election cycle. I also think art
that is critical of leaders that neither the subject or the
photographer approve of need to be a legal form of expression. I think this Bush image is a perfect example.
This is a blog post that speaks more to the legal issues in the case. Thanks for reading.
Lawrence Lessig and I have been writing about the link between publisher contributions to members of the House Judiciary Committee and their support for H.R. 801 -- a bill that would end the newly implemented NIH public access policy
that makes all works published as part of NIH-funded research freely
available online. On Friday, House Judiciary Chairman John Conyers
(D-MI) -- lead sponsor of the bill -- responded in a letter on Huffington Post.
The first several paragraphs of Conyers' letter contain an outline
of his record as a progressive politician. But no record, no matter how
distinguished, is an excuse for introducing an atrocious piece of
legislation that sacrifices the public interest to those of a select
group of publishing companies.
Conyers would have us believe that it is just a coincidence that his
bill would erase a government policy vehemently opposed by publishers
who have contributed to his campaigns. But his response to our letter
-- like the bill itself -- is taken straight from the publishers'
playbook.
Conyers trots out the publishers' two favorite lines of attack
against the policy: 1) that the NIH policy is taking a right (in this
case a copyright) away from publishers, and 2) that making
taxpayer-funded research available to taxpayers will bankrupt
publishers and thereby destroy science.
Both arguments are specious and reflect fundamental ignorance about
how science and scientific publishing work. The accusation that the
policy is bad for science because it will drive publishers out of
existence is the more serious one, so I will deal with it first. Here
is what Conyers wrote:
... on the narrow merits of the issue, Professor Lessig and
proponents of "open access" make a credible argument that requiring
open publishing of government-funded research information furthers
scientific inquiry. They speak out for important values and I respect
their position.
While this approach appears to further and enhance access to
scientific works, opponents argue that, in reality, it reverses a
long-standing and highly successful copyright policy for
federally-funded work and sets a precedent that will have significant
negative consequences for scientific research.
These opponents argue that scientific journals expend their own,
non-federal resources to manage the peer review process, where experts
review academic publications. This process is critical because it
provides the quality check against incorrect, reckless, and fraudulent
science and furthers the overall quality and vigor of modern scientific
debate. Journal publishers organize and pay for peer review with the
proceeds they receive from the sale of subscriptions to their journals,
thereby adding considerable value to the original manuscripts of
research scientists.
The policy Professor Lessig supports, they argue, would limit
publishers' ability to charge for subscriptions since the same articles
will soon be publicly available for free. If journals begin closing
their doors or curtailing peer review, or foist peer review costs on
academic authors (who are already pay from their limited budgets
printing costs in some cases), the ultimate harm will be to open
inquiry and scientific progress may be severe. And the journals most
likely to be affected may be non-profit, scientific society based
journals. Once again, a policy change slipped through the
appropriations process in the dark of night may enhance open access to
information, but it may have unintended consequences that are severe.
Far from being the reckless act Conyers portrays, the NIH policy is
actually fairly conservative. It requires that papers that arise from
NIH funded research be made freely available, through a website run by
the National Library of Medicine, within 12 months of publication --
not immediately. This delay between publication and free public access
was put in precisely because it will allow publishers to recoup, and
profit from, their investment in publishing by charging for access to
the freshest material.
Science moves far too fast for active researchers to afford a year's
delay before reading papers in their field. Thus universities and other
research institutions have to maintain subscriptions to journals even
if their year-old content is freely available. Many journals, realizing
that their revenue comes primarily from new material, already make
their complete contents freely available online after a year or less.
And these journals have not reported a wave of canceled subscriptions
-- or any appreciable loss of revenue. So both empirical data and
publisher actions refute Conyers' central argument against the NIH
public access policy.
Conyers' argument is also clouded by several misconceptions about
scientific publishing. He correctly identifies peer review as the most
important role of scientific journals. But he is incorrect in his
assertion that publishers make a tremendous investment of "their own,
non-federal resources" in the process of peer review. While publishers
supervise peer review, the process itself is carried out voluntarily by
members of the research community. Scientists receive no remuneration
whatsoever when they review a paper -- they do it instead because they
recognize that peer review is central to the scientific process.
Since the salaries of most American scientists are paid, directly or
indirectly, by the US government, the peer review process is actually a
massive federal subsidy to publishers, whose very existence is based on
the tens of billions of annual taxpayer dollars invested in scientific
research. That even after they have had a year to profit from this
taxpayer largesse some publishers are still unwilling to grant the
public access to copies of papers they paid to produce and review is
unconscionable.
And while Representative Conyers' publishing friends may have
convinced him that there are severe unintended consequences that will
arise from the NIH public access policy, the scientific community --
who has been debating this issue for over a decade -- strongly
disagrees. [read on...]
Mr. Conyers says
I "cross the line." He says I label his motivations for introducing
this bill as "corrupt," that I accuse him of "shilling," and that I
"dismiss" his bill as nothing more than a "money for influence scheme."
On the basis of this "one piece of legislation," he says I have waved
away "forty years of fighting against special interests." He insists
that he has "earned a bit more of the benefit of the doubt" and "that
there is far more to the 'open access' story than [my] muckracking tale
lets on." (Mike Eisen and my original posts are here and here. My blog post is here.)
First, as to substance: As others have shown without doubt, there is
absolutely no "more to the 'open access' story" than my and Mike
Eisen's criticism let on. (See the rebuttals especially here and here.)
This bill is nothing more than a "publishers' protection act." It is an
awful step backwards for science -- as 33 Nobel Prize winners, the
current and former head of the NIH, the American Library Association,
and the Alliance for Taxpayer Access have all said. And Mr. Conyers
knows this. Practically the identical bill was introduced in the last
Congress. Mr. Conyers' committee held hearings on that bill. The "open
access" community rallied to demonstrate that this publishers' bill was
bad for science. Even some of the cosponsors of the bill admitted the
bill was flawed. Yet after that full and fair hearing on this flawed
bill, like Jason in Friday the 13th, the bill returned -- unchanged, as
if nothing in the hundreds of reasons for why this bill was flawed mattered to the sponsors.
The early experimental video art scene in Chicago,
and its indispensability in developing an understanding of contemporary
New Media practices, is something that I learned from jonCates and that
jonCates learned from Phil Morton. Well, maybe it's not quite that
simple, but that is one possible set of connections that can be traced
from jonCates' COPY-IT-RIGHT project.
The Phil Morton Memorial Research Archive was initiated in 2007 by jonCates and is housed in The Film, Video & New Media Department at the School of the Art Institute of Chicago.
It exists to organize and freely distribute Phil Morton's new media
artwork, and also to perpetuate the COPY-IT-RIGHT ideal that Morton
advocated. As you can read on the blog for the COPY-IT-RIGHT project,
Morton sought to disseminate an anti-copyright attitude towards media
and its distribution, especially artwork that is based in digital
technologies. By referencing these ideals under the phrase
'COPY-IT-RIGHT', Morton sought to completely replace ingrained notions
of copyright law by re-framing the term's meaning as a call to action.
Make copies! It's the right thing to do! jonCates states that
COPY-IT-RIGHT ranges in meaning from copyright reform to pro-piracy.
"The COPY-IT-RIGHT ethic is presented by Morton as a value, even as a
moral imperative, to share and freely exchange media," he said.
jonCates began researching Morton's work shortly before he learned of Morton's death from Jane Veeder,
one of Morton's collaborators. Veeder put him in contact with Morton's
surviving partner, Barb Abramo, who later entrusted all of Morton's
archived material to him. jonCates said that this took place after a
couple years of correspondence and a developed understanding. The
creation of the archive is, "a personal and subjective process that
involves developing trust and friendships."
The personal degrees of separation enabling this archive, however,
should not betray it's larger goal, which, according to jonCates, is to
facilitate discourse. "This discursive work is intended to be
productive, engendering the development of theory/practices that are
informed by these archives and contributing to ongoing conversations,"
he states. The archive is a central point of investigation, but also
exists as a mediating voice within existing networks and issues, in
both form and content. The intermingling of the archive's personal and
institutional roots is exemplary of how individual archives might begin
to bridge recognized authority and the histories that are important to
individuals.
Because COPY-IT-RIGHT is a project that seeks to freely distribute
media art, as well as create a networked discourse around it, we are
invited to explore ideas such as influence and the generative origins
of our knowledge. This process eclipses antiquated visions of the
archive as a static source of 'knowledge' or 'history'.
COPY-IT-RIGHT's latest web entry is a transcript of a talk jonCates
gave at McGill University on anti-copyright approaches to media. In
that talk, he refers to "the artistic role of archives". jonCates
provided some further examples of "artistic archives", such as Emily Jacir's Material for a Film and Walid Raad'sThe Atlas Group,
which both seek to illuminate history and contemporary contexts through
materials that might not be automatically absorbed into our stateliest
cultural institutions. They represent an independent approach to
information collection, at the same time that they contain material
that is itself a challenge to dominant cultural and historical
knowledge. Likewise, COPY-IT-RIGHT is a lesser-voiced exploration of
Chicago’s art history, but also an open-ended call to discuss and
develop material on the future of media copyright attitudes.
The COPY-IT-RIGHT project, as mentioned, also exists to provide entry
into Morton's media art, for study or copy. The work he did with Dan
Sandin, creator of the Sandin Image Processor - an analog computer for
video image processing. Morton and Sandin's "Distribution Religion" is
a project that documents the process of duplicating the Sandin Image
Processor. Morton wanted to create a duplicate of the processor itself,
and in the process, created an outline of the method for others. The
documentation became part of the copying process, and also includes
remarks on the COPY-IT-RIGHT ethic.
