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The Evolution of Creative Rights


Notes from an online discussion led by Chase Jarvis and ASMP for chasejarvisLIVE

 

Panelists at chasejarvisLIVE taping
Panelists interact with audience members while taping the August 29 episode of chasejarvisLIVE. From left: Richard Kelly, Lawrence Lessig, Chase Jarvis, Oleg Gutsol, Noam Galai.

 

On August 29, 2012, photographer and director Chase Jarvis partnered with ASMP to lead a live-streamed Internet discussion about the future of photo sharing and the evolution of creative rights for an episode of chasejarvisLIVE, an ongoing show with new episodes appearing regularly at http://chasejarvis.com/live. To view the Future of Photo Sharing segment directly, visit http://bit.ly/O8Ha2v.

 

Contributing to the dialogue were Richard Kelly, former ASMP president; Lawrence Lessig, co-founder of non-profit organization Creative Commons; and Oleg Gutsol, CEO of the photosharing Web site 500px. Panel members discussed how photo sharing in an era of new media is prompting a revision of current copyright practices and necessitating discussion about how content providers approach securing the rights to their work.

 

Interestingly, although all of the panel members come from different facets of the creative world — Kelly the “copy ‘right,’” Lessig the “copy ‘left’” and Gutsol the “copy ‘middle’” — in the end, all of them, including Jarvis, agreed that the future of copyright is for the most part in the hands of creatives, if they would like it to be. Among the main problems facing photographers today are dealing with an outmoded and unwieldy copyright system that few choose to engage and general inadequacies in being able to trace the original source of a creative work. In the absence of a major overhaul by the Congress, it’s in all photographers’ best interests to help shape a system that works for them and to demand that the system be implemented in today’s media outlets. The alternative is letting corporations, lawmakers or other parties shape a new system to suit their interests. By binding together, the creative community can — and should — force the change it wants to see.

 

Internet Sharing Has Pluses and Minuses

Thus far, both the drawbacks and the benefits of sharing photographs publicly on the Internet run deep, depending on a photographer’s position in the market and the consequences of the public’s response. On the one hand, misappropriating images and reproducing them without credit or compensation means photographers are denied the income and attribution due them, forcing them to consider legal action. On the other hand, photographers previously unknown to the public can suddenly avail themselves of a valuable forum.

 

The Stolen Scream, by Noam Galai
© Noam Galai

 

Noam Galai, artist of “The Stolen Scream,” was largely unknown before the self-portrait he posted on the Internet in 2006 caught the interest of the world and was reproduced in 30 or 40 countries, mainly without his permission. Galai, who attended the Chase Jarvis LIVE episode as a special guest, explained that although the misappropriation of his image may not have been good for him in the short term, in the long run this exposure resulted in invaluable publicity and new clients that he otherwise would not have gained. Click here to watch a video segment about Galai, originally published on the Fstoppers community Web site.

 

As noted by panelists, the current system of copyright was created in a completely different time, when the primary media being protected was the written word. Because today’s copyright system is not adequate in covering usage in new media, a lot of ambiguity and confusion is left in its wake. Although copyright is implied even without affixing the “©” symbol on an image, registering an image is a necessity in order to pursue legal action if an image is misused. While the panelists agreed that registering an image is necessary, they also agreed that, as Jarvis put it, those “keys to the kingdom are expensive and hard to come by.” It’s a faulty system not only because it doesn’t apply to today’s media, but also because it’s complicated and expensive — and, according to Lessig, it consists of a poor infrastructure for enforcement. As a result, the majority of photographers don’t bother entering their work in the current system, providing little incentive for lawmakers to step in and help solve the problem.

 

The exposure that new media enables is phenomenal. We have the ability to access all kinds of information much more easily and with great detail. Niche areas can grow like never before. An individual or a work can come to the fore based on the quirkiest of circumstances if the time is right. We can potentially interact with the famous and the stranger alike in a way that can feel both intimate and noninvasive. Our desire for information and connection from technology-fueled worlds like chat rooms, Facebook, Twitter, Instagram, You Tube, E-Bay, and so on is as strong and as integrated into our daily lives as ever. Thus, our contention with copyright is “not a legal discussion,” says Jarvis, but “a philosophical discussion about what artists want and what societies and cultures consume.”

 

People want to share what they want to share and reserve what they want to reserve, but when it’s not clear what can be taken or used and what can’t, many individuals simply take the law into their own hands. This lack of clarity and proper enforcement of creative rights has become so widespread that some even advocate abolishing copyright laws altogether. None of the panelists agreed with this position, but all of them understood why it has manifested. “There is no efficient way for artists to enforce their rights,” stated Lessig, “no clear assertion one way or another if they can share an image, and no infrastructure that allows for that intention to come through.” As it stands now, even if a work is registered, there’s no way to find the person who registered the work. So even if people want to discuss obtaining creative rights from an artist, there is no pathway allowing them to do so.

 

Partial Solutions

One potential solution to the problem is Lessig’s non-profit organization Creative Commons, which provides artists with free legal tools that enable them to share images more safely with the public. Creative Commons licenses offer a simple, standardized way to allow the public permission to share and use creative work, according to the conditions of the photographer’s choice. Although not an alternative to copyright, Creative Commons licenses work alongside copyright so artists can communicate to others their intention for sharing an image, modifying copyright terms as they see fit. For example, photographers who want to share an image but want to protect it from commercial use can procure a Creative Commons license that specifies only non-commercial use, while photographers who want the ultimate exposure can opt out of copyright altogether and place the work as squarely as possible in the public domain. The organization also offers individuals Creative Commons-licensed assets available for free and legal use, so that people can acquire work knowing for a fact it is being used lawfully and in accordance with the artist’s intentions.

 

Another successful, budding alternative solution to the problem of copyright today is offered at 500px.com, panelist Oleg Gutsol’s photo sharing Web site that allows users to download and license an image for personal use only in accordance with the photographer’s wishes. Because one of the main problems in handling creative rights today has to do with determining attribution, a Web site like 500px is key in bridging the gap that separates users and artists, making lawful acquisition of an image possible.

 

What You Can Do Now

But, in navigating territories that do not have systems in place like those of Creative Commons and 500px, how can individuals safely share their images? For now, the best alternative protection is to embed metadata in images whenever possible, so that a lawful exchange is at least feasible. Unfortunately, as Kelly pointed out, many online social networks strip out that data, preventing linkages to the original source. Hence, it’s up to the creative community to demand that the companies and organizations handling original work embed metadata in images, film and music. In the end, panelists agreed that rising up as a community by taking responsibility for one’s work is one of the most significant steps artists can take in preparing the way for a clear, fair, commercially viable — and likely much more creative and enjoyable — future.

 

—Amy Touchette