Unbridgeable Chasm: Lane Hartwell & The Richter Scales (2007 - 2009)

RELATED: 

• Illegal Prop.: Abuse & Damage the Source (Letter to Lessig)

SEE ALSO:

• Copyright, fair use and the struggle against online image misappropriation (Law Geek)

• Nalts Fans the Flames of Online Civil War (Mashable)

• A flashconf on fair use? (Scripting News)

• Stopping a Civil War - A Civil War is Brewing (Furrier.org)

UPDATE: January, 2010 — Version 1.1

Created in late 2007 by removing the Hartwell photo, this is the only remedy to Hartwell’s takedown request. Via “Here Comes Another Bubble” Credits (Versions 1.0 and 1.1)

Kara Swisher (shown only in Version 1.1)
Photo found on Kara Swisher’s All Things Digital bio, photo by Adam Tow

Owen Thomas (shown only in Version 1.0)
Photographer: Lane Hartwell, photo appears in Wired News

UPDATE: February, 2009 — Hartwell: “no expert”

For want of a nail the post was lost
For want of a post the horse was lost
For want of a horse the rider was lost
For want of a rider the battle was lost
For want of a battle the kingdom was lost
All for the want of a freakin’ photo of Owen Thomas

UPDATE: December, 2008

This post was written in December of 2007, but one year later, the video is still missing from YouTube; copyright and “fair use” of images remains an issue in spite of Lessig’s efforts, and those of Creative Commons.

I found a copy of the video at the center of this controversy. Judge for yourself! (Original music video using a Billy Joel song and various internet images)

Video (2:45): Here Comes Another Bubble - The Richter Scales  (via “antifreeze”)

“Owen Thomas” Google search

Let’s assume: high-resolution digital media should be licensed, “paid for” and not pirated.

For lo-fi photos, lo-fi audio, etc. we could make use and re-use “free”, “low flat fee” or “attribution only”.

This finesses a problem that businesses and artists have had before; many things don’t get enough money or attention because they are too heavily guarded.  

There have been successes making things free or very cheap, letting crowds and time do their magic. Then later you make money in sheer volume, in the tell-all book, the director’s cut, the audio re-master, or the glossy magazine cover.

Ms. Hartwell should not have needed to yank all her photos; perhaps she could have replaced them with lo-fi versions, her name inside the image frame, and never made public her hi-res collections.

Most people should still use lo-res public galleries so people know where to go if they do want the “good stuff”. Unless, of course, you have all the fancy rich clients you need, and don’t care whether new people discover you.
 

The music industry has missed this exact opportunity as well  (thanks to Alex Lindsay of PixelCorps.tv for providing a crucial piece long ago)

• Very-lo-fi DRM-free audio tracks everywhere
• Two levels of paid-for service: normal (limited hi-fi), or premium all-you-can-eat
• Playlists then make sense, because playlists should always “just work”, and be portable
• Missing track is a thing of the past
• Lo-fi track is what happens when you are cheap or are trying before buying.

1. General Solution: Make lo-fi versions of most every photo and audio track available, for free or very low cost, and make it easy for “creatives” to pay to license hi-res media, be it one photo, ten seconds of music, etc. 
2. Benefit: things don’t have to be “taken down”, just replaced with lo-fi versions where people haven’t paid creators or gotten permission.

This could enable a whole bunch of non-commercial activity, and should the Richter Scales start becoming commercial, they’d license the work or get permission, maybe share royalty. If they used the photo out of laziness, and don’t care about the fidelity, I think the argument leans toward their side. Maybe there weren’t other recent photos of the “new media d***-bag” (Owen Thomas).

One shouldn’t  find the hi-res media by searching.  One shouldn’t find lo-res either if one is going to be sued or taken down after the fact. Perhaps this is Wired’s fault? The implication is that Ms. Hartwell’s snapshot is worth more than the final music video, which I refute. How can we let a lot of hard work and talent go down the (you) tubes because the rules favor accusers, corporations and lawyers and provide no clarity, no recourse, no compromise, no simple legal guidelines for simple artistic goals.

(I should mention here that Ms. Hartwell was very aware of the large number of views they were getting. She may feel robbed, but others may feel extorted)

I think what angers some is that briefly showing a likeness, photo and subject not unusual or artistic, requires a pre-negotiated license. I do not think it reasonable to make a career of selling licenses to use ordinary (in this case) pictures of people that you* have access to and others don’t.

That would put you* half-way toward becoming a paparazzo, wouldn’t it? A paparazzo who doesn’t have to compete and has the cooperation of the “celebrities.” These are big celebrities only in their small insular world.

We aren’t talking Princess Di and Dodi, fer cryin’ out loud!

you* is a “hypothetical” you.

<iframe src=”http://friendfeed.com/thomashawk/6b78df0f/more-on-whole-simon-blint-fiasco?embed=1” frameborder=”0” height=”600” width=”400” style=”border:1px solid #aaa”></iframe>

Update on 20100111 at 16:16 by richardwalker

Richter Scales live at the Crunchies party performing “In the Valley”

Illegal Proposition: Abuse and Damage the Source (Letter to Lessig) (March 2008)

Dear Mr. Lessig,  

Thank you for your reply a long while ago regarding my frustration over wikipedia photos! Now, let me try another tack in light of recent events. Apologies for the length.

Could it be made legal to… expand and merge clear fair use, quotation, transformative use, allowable “under the limit” use with “damaged” use:

• lo-fi audio (unpleasant, noisy, covered by other sound, tinny, bassy)
• lo-fi speech (almost or partly incomprehensible)
• lo-fi image (important detail missing, no color, no color fidelity, small part of image)
• lo-fi text (tiny, unreadable)
• lo-fi video (fuzzy, tiny, misshapen, jerky, lower frame rates)

If the use is clearly not fair use, or not agreed to:the less “fair” the use is, the more you have to degrade the thing you are using, so it is absolutely undeniable that you are using the work because you must, but not stealing the thing.

In Hartwell v. Richter, let’s assume there is only one photo of the subject, and no permission (but at least some sort of access.) Then, you have a painter or illustrator work from the photo, creating a new independent work. That may not always be possible, affordable, practical, scalable.

But, let’s assume you are willing to torture the thing you want to use without permission.
Why can I not take the photo, print it on poor paper, get it wet, step on it, leave it in the sun, then scan it at poor fidelity, so that I have an indisputably inferior derivative “copy.” Can I not use that, without permission?

My point here is that I think it would be a huge help if we could say that there is always more abuse, more squashing, more scratches, more dust, more noise, more distance, you can apply until you reach the point where a claim of infringement is so ridiculous as to make even the most aggressive lawyers blush. It becomes “fair use” because it’s no longer aesthetically intact.

Take the Richter video into an editor, identify the Hartwell content, apply some censorware to the video, so that you see it strobe, or reverse, visually, so you see the censor marks but also sort of see underneath. Anyway, Ms. Hartwell might welcome a reversal of the take-down, and perhaps they could try to discuss compromise. Perhaps everyone wants to see it now. Perhaps its not as good as all that.  But, a single challenge should not mean sudden death and amnesia (take down and forget.)

Maybe people will realize satire and parody have the easy legal argument, and in fact have to be very close to the original to have that protection. 

Disney, Warner Bros., now with many decades of paid-for mythology that we’ll be paying to see again on the screen or in the park. And, don’t use Mickey or Bugs, or they will sue you, but they will use them promiscuously and greedily.

Perhaps social pressure will make people stop enforcing copyright when the real goal is to silence others and maintain a monopoly. A runaway success in remix culture may get clout and cash and permit creation of hi-fi derivative works.

Or, we can do nothing and wait for the corporate singularity (I’m trademarking that right now) to occur. That’s when for obvious reasons different conglomerates merge geographically, so that entire states are serviced by one phone company multi-monopoly, one content provider, one retailer, et cetera.

We need to prevent the “owners name their own prices, at the last possible moment” bargaining, and try to force a uniform sane fee for a tortured derivative work, so you can retreat enough to be safe, then go forward. Each case should not be another fight to the finish over claims of infringement that call for death and amnesia. (and never offer reasonable licensing terms)

Their properties are not hated, people hate the way they are used like a bludgeon… And if they could just relinquish some control and see what develops.

Am I living in a fantasy to think this could be possible?

The kind Mr. Lessig responded:

From a practical perspective, it is a great solution. From a legal perspective, it is weaker, since copyright protects a “work” and not any particular copy of it. In some contexts, I agree this would be a great solution.  

Discussion on Copyright Today

Yesterday, my friend Alex Scoble made a provocative statement:

Dead people shouldn’t have copyrights…it’s stupid

This led to a full-fledged roundtable on copyright, on the social networking site FriendFeed.

Photographer Thomas Hawk made some observations about working for Disney toward the very end of the conversation.

For the record:

Transcript:

Alex Scoble

Dead people shouldn’t have copyrights…it’s stupid.

August 17 - Comment - Like - Share

John E. Bredehoft, Stephen Edgar, Jason Nelson and 71 other people liked this

Dead people don’t their estate does. - Chris Greene

Yeah, that argument makes it less stupid? Not. - Alex Scoble

+Chris. Or companies which may have invested in the intellectual property. - τorƍue

@Alex - Sure it does. Tolkein’s kids have a right to everything their parents left them. - Chris Greene

Copyrights is like an inheritance to the kids, but rather than estates being given, they are giving their intellectual property. - Wizetux

Alex, I agree with the sentiment, but if a copyright is invalidated upon death, then a sufficiently valuable copyright would provide incentive to off the owner. :P - Tanath

Like hell they don’t…They have a right to the money/property he bequeathed them at death, not to keep on making money based on his works. That’s not how copyright is supposed to work. It’s supposed to grant a limited time for which a creator can recoup the costs of their work. It’s not supposed to transfer to their children and to their children’s children. It should be a lot closer to the patent system. - Alex Scoble

I think it’s stupid that copyrights last much longer than the average human lifespan. I think it actually does a lot of hamper innovation. - Victor Ganata

Why are patents for 17 years but copyrights are effectively without end? It’s stupid, that’s why. It’s all so Disney can continue to make money off of Mickey Mouse without coming out with new content. - Alex Scoble

The patent system is borked too… - Tanath

@Alex -According to you argument intelliectual property shouldn’t be transferred. If that’s the case, then why does a company get to maintain ownership of IP after the creator passes? - Chris Greene

Because they bought off Congress. - Alex Scoble

@Alex - Adding to that, then if the company is passed on to realatives they no longer own that IP? - Chris Greene

LOL, blunt & to the point. :) - Tanath

@Alex: copyrights have an end: in the US it is 70 years after the death of the creator. - Wizetux

@Alex - So a company is not property then? - Chris Greene

That would certainly provide incentive to innovate… - Tanath

The whole point of the patent/copyright systems are to spur innovation and the creation of new works. The current system actually runs counter to this goal. And no, copyright is not property. - Alex Scoble

I didn’t say copyright, I said a company - Chris Greene

copyright is a system of revenue for work created. - Wizetux

I don’t care about companies. This conversation isn’t about companies, it’s about copyrights. All arguments that don’t deal with copyright, but with other ideas other than copyright and patents will be ignored by me. - Alex Scoble

By the way, a company’s copyrights now last for 95 years. - Alex Scoble

It is. I asked if a companies IP (and copyright) is transferrable once the originator dies. As such, is the company transferrable? - Chris Greene

Wouldn’t copyrights force people to not copy off others work, and come up with something of their own? I don’t get how they inhibit innovation/creation. - Heather

The original U.S. Copyright Act granted rights for 14 years with a 14 year extension. Now it’s 70 years after the author dies, or if it’s a work-for-hire, 95 years after publication, or 120 years after creation. - Victor Ganata

But it would force creators to come up with new stuff every few decades, instead of milking their one good idea for the rest of their life. The current system encourages mediocrity. We shouldn’t be surprised that that’s what we get. - Victor Ganata

Patents do stifle innovation: http://www.physorg.com/news167… I think the argument generalizes to copyright as well. - Tanath

Heather: If you and someone else are both offering the same service/product, which one are people likely to choose? Without the copyright/patents, it forces competitive innovation on everything, including existing products & services. - Tanath

I think it’s perfectly acceptable for my estate to retain my copyrights after I die. I will be explicit in my will what I want to happen to them. Just because I’m dead doesn’t mean they stop being mine. - Lindsey is Fierce!

Alex, what have you done to try to change the Constitution? - Glen Campbell, B.A.

Copyright law isn’t spelled out in the Constitution. :) And I’ve done plenty posts about it here on friendfeed :) - Alex Scoble from IM

So I come up with a great book and publish it a month before I die and never personally benefit from its greatness. It’s stupid that benefit can’t go to my estate for a reasonable time. - LogEx

Yes, copyright law has been mutated into something ugly, but that doesn’t mean we should swing the pendulum all the way the other way. As usual, the right answer is somewhere in the middle. - LogEx

Yeah…17 years should be the answer. :) - Alex Scoble from IM

Oh and I wrote a letter to my state senators and my congressman to not pass the DMCA once…they just told me it was in my best interests…yeah right - Alex Scoble from IM

Lindsey: “Just because I’m dead doesn’t mean they stop being mine.” It kinda does, since you don’t exist anymore… - Tanath

IMHO I’d rather see lifetime+17 years instead of lifetime+70 years FWIW. Could still be inherited, but you wouldn’t necessarily have a whole generation or two of people that make their living off their parent’s work. And it would force businesses that owned IP to innovate instead of perpetually litigating over it. - Glen Campbell, B.A.

Logical Extremes: Public policy is supposed to be about what benefits society, not individuals or companies & corporations. - Tanath

I’d rather see a fixed period like how the patent system is. Problem is that big companies like Disney just pay off congresspeople to extend the rights. - Alex Scoble from IM

I’m surprised that they haven’t been able to do so with patents - Alex Scoble from IM

I always thought that an intellectual property, whether it is copyright or patent, should be moved permenantly into the public domain unless an effort to bring to market is displayed by the owner within a predetermined period of time( <5 years). - Geoff Schultz

That would be a step in the right direction. - Tanath

I’d like to see lifetime + 21 years or 70 years, whichever is greater. Maybe nudge it to 80 out of respect for expanding lifespans. Actually, my idea would be a fixed cap of, say, 20 or 40 years, but small steps, y’know? - Roger Benningfield

The world isn’t restricted to changing in small steps… - Tanath

It’s probably too much to ask that the pendulum go back to where it was originally, but at least the pendulum should start shifting in the other direction of decreasing duration. 120 years is a ridiculously long time. - Victor Ganata

Alex: What do you think about eliminating copyright and/or patents? - Tanath

I don’t think that would be a good idea…I think that would have the same effect on innovation that having copyright/patent periods too long does - Alex Scoble from IM

How so? - Tanath

For instance, drug companies wouldn’t bother spending the billions it takes to get new drugs made unless they got the guaranteed exclusivity that a patent brings - Alex Scoble from IM

I don’t know about that… and there are other ways to deal with stuff like that. Public funding is one option. - Tanath

Tanath: Short of full-scale, violent revolt, yeah, the world is generally restricted to small steps. And I don’t plan on offing anyone just to get Warner Bros. to surrender Superman to the public domain. - Roger Benningfield

copy rights should be timeconstrained, thats it (like 20yrs) - chaz2b

Roger Benningfield: I disagree. The advent of the internet for instance has changed & will change things rather quickly. Change is accelerating. And while you may not be one to off someone, the incentive would still be there, and from time to time it would happen. - Tanath

You know, if we adhere to cavet emptor, and choose not to protect the consumers from bad purchases, why should we protect the rich companies from bad investments? If they invest in something that everyone else duplicates (right away) isn’t that called competition? - Paul W. Homer

So your against inheritance - why should a copyright expIre ? - Nicholas Paul Gordon from iPhone

Copyright still expires, just not within our lifetimes. The original intent of copyright was never to provide indefinite protection. - Victor Ganata

The U.S. Supreme Court rejected the idea that copyrighted works should have the same protections as physical property in 1834 http://en.wikipedia.org/wiki… - Victor Ganata

I agree with you, Alex. The current system of copyright is completely borked & totally driven by megacorps like Disney. We should go back to how it originally was in the US. - joshua “magic” neff

Just for the records, it’s not an issue only at the US level. Since the Berne Convention, a lot of these questions are discussed at an international level (look for WIPO, ACTA,…) - Laurent

Dead people have descendants! And they SHOULD have rights! Dude… Dad up! - Arleen Anderson

Given the time frame they first specified, it was totally not the intention of the founding fathers to let copyright pass into the next generation. - Victor Ganata

Luckily for Disney, the strict constructionists of the Republican party saw through to the true, *hidden* intentions of the founding fathers! - Andrew C

Even better, they’ve managed to criminalize infringement. - Victor Ganata

Man, you are soooo onto something screwed up about this perpetual copyright concept. - Jason Nunnelley

I’m finding this discussion very interesting, although it seems that everyone knows a lot about copyright that I don’t so I’m a little behind. But I would like to contend that the intentions of the Founding Fathers (dun dun dun and lightening) aren’t the relevant concern. - Heather

Can’t blame the GOP entirely. The Dems were still responsible for the 1976 act, which extended it to 75 years or creator’s life+50 years. - Victor Ganata

I don’t know. I still believe the purpose of copyright is “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”, and not simply to allow people to ride the gravy train into infinity and beyond. I suspect I’m not the only one who believes similarly. - Victor Ganata

Interesting use of “to infinity and beyond”. ;) BTW, I can’t figure that Wikipedia link out, I think my brain has melted but I don’t know what it means. - Heather

I’m in favor of prohibiting “authorship” transfer. And, the original term was 15 years - Now, it’s 70 years after the death of the author, and transferable to holding companies and trusts. Not to mention, Disney’s artists are “work for hire.” Copyright has become the tool of corporations and investors. - Richard ¿digame? Walker

IANAL, so the case write up itself is pretty opaque to me, but going by the summary, one side of the case contended that copyright is a natural right of a creator of any work, and that it should last in perpetuity, and that a copyrighted work should have the same protections as real and tangible property does. The case went to the Supreme Court, and they said, no, copyright can only exist as decreed and enforced by the state and it isn’t the same thing as real and tangible property. - Victor Ganata

Oh yes, except China. They don’t have to comply for some reason - perhaps because we can’t make them pay, perhaps because they haven’t signed any treaties. But maybe, the complete absence of “regional pricing” that makes sense is yet another problem with copyright today. - Richard ¿digame? Walker

I agree 100% http://www.youtube.com/watch… - Geo Meek

I’d be all for a fixed term like 15 or 20 years or something like life +5 years. - Steve is older than ever

Oooh, thinking about Alex’s original post I’m coming up with a great near-future sci-fi story where anyone who comes up with a hit song or story or movie immediately has hire serious bodyguards to protect themselves from the IP assassins who try to have them rubbed out so their copyrights will expire. - Steve is older than ever

I believe Microsoft Office would cost a small business in China their entire budget for a year.. A CD would cost one family’s income for a month. Or thereabouts. - Richard ¿digame? Walker

Ah … the Mickey Mouse clause - every time the copyright on Mickey gets close - the ‘fixed term’ gets extended. Copyright is driven by American capitalism ?? - Chris Loft

I’m not a capitalist? - Alex Scoble from IM

Because I don’t believe in unfettered capitalism, doesn’t mean I’m not a capitalist - Alex Scoble from IM

How is that not capitalism? I believe in responsible capitalism. Fettered capitalism is what we have now…more or less. :) - Alex Scoble from IM

Trading in knockoff goods should be analogous to illegal music downloads, meaning that cheap handbag should cost you literally millions, according to the Jammie (Jamie?) Thomas disaster. - Richard ¿digame? Walker

LOL Dave, and this is where we obviously diverge in opinion. Business has been allowed to run so rampant over society in the last 20 years that it’s caused a lot of problems. - Alex Scoble from IM

curious Alex: so the family of an arist should’ve benefit if a work is published posthumously if the work was finished on his deathbead? - Bastard Operator From FF

Yeah, I think if you read my comments, I’d like to have a fixed period of ownership (no longer than 30 years) rather than the system we have now…This would give families in the situation you propose some benefit from the works of a loved one. - Alex Scoble from IM

Sorry Alex missed it scrolling through… we’re in agreement. - Bastard Operator From FF

Patents without an intent to market are even worse - Alex Scoble from IM

What is it Warren Buffet is doing he’s left his kids “Enough money to do whatever they want and not enough that they can do nothing” - Bastard Operator From FF

Yeah, in my mind, corporations living off the teat of the dead is even a bigger problem than the “welfare rich” - Alex Scoble from IM

I feel like if *poof* all copyrights were over after 30years from origination there would be a lot of shitty movies in production in a year or two. Plus, I understand Disney is the devil and whatnot, but if a character (like Tinkerbell maybe) is still popular and stuff involving the character are still being produced, shouldn’t that reinforce the copyright? Going back to Tolkien, LotR could have been made a movie, copyright free, as of 1954. But what about his stuff that wasn’t published until his son formed the notes into full books? The original material came from Tolkien, but the son actually assembled and edited the material into a book. - Heather

Heather if Popularity is a factor in copyright then Shakespeare and Dickens are still under copyright - Bastard Operator From FF

Heather, I think a law against shitty movies would be a great thing. - Steve is older than ever

Hate to break it to you, but there are already a lot of shitty movies getting made. - Alex Scoble from IM

Do we need more? lol - Heather

And one could argue that new works that are derivative of previous works would be protected under new copyright - Alex Scoble from IM

LOL - Alex Scoble from IM

I’m all for peeling away copyright laws. In a totally unregulated world, copyright would not exist. - Victor Ganata

Apparently I thought this thread was dead, while y’alls comments were queuing up. My bad, I don’t mean to talk AT the thread LOL - Richard ¿digame? Walker

Heather, just a bit of background on why Disney deserves derision - Mickey Mouse was ganked, cribbed, stolen, from Steamboat Willie, and much of their huge money makers are derivative of the Brothers Grimm, H.C. Anderson, etc. etc. Song of the South, though, is entirely original I think :) And what others have said about Mickey driving copyright extension is true. So, the fact that none of the artists working at Disney today own the copyright to their work, just highlights how things have changed. Walt is dead, and the mouse is in control. - Richard ¿digame? Walker

Heather, I think you’re mixing trademarks (like the characters of Tinkerbell, Mickey Mouse, etc) with the copyrighted works they appear in. I don’t think anyone is saying Disney should lose their trademarks, but IMO old works very well should have copyright expire. - Andrew C

Heather, 30 years from publication solves your problem nicely. A derivative work can get its own 30 year term, paying as appropriate to the work.it derived from - Richard ¿digame? Walker

By the way Alex, you’ve hit on my preferred solution exactly, with one small addition: rights of “authorship” can’t be transferred meaning Yoko can’t prevent a derivative Lennon work. That is Lennon’s call only. Not inherited. The heirs to “Gone With the Wind” attempted and failed to prevent publication of a re-telling from the slave’s perspective, “The Wind Done Gone”. I know my Lessig :) - Richard ¿digame? Walker

Arleen, you should concede that you missed the point, that inheriting the right to profit from a REASONABLE copyright is not the issue. Lessig has written extensively on why the ridiculous, RETROACTIVE copyright extensions have perverted the intent of copyright, and created a monster, namely effectively perpetual copyright bought and sold by holding companies, trusts, and media conglomerates. And occasionally a Michael Jackson. - Richard ¿digame? Walker

I love this thread! by the way. - Richard ¿digame? Walker

Good for bringing up this important topic Alex. Copyright lasts way too long. Disney and mega corporations ought not hold sole creative license to remix these important works from the past. Copyright should not last past your death. That’s just wrong. - Thomas Hawk

Why is it “just wrong”? There is as much to justify copyright being passed on to estates as chattel or property, Maybe copyright shouldn’t exist at all? - Brian Sullivan

It’s wrong because art needs to be recycled and prohibiting past creative efforts from becoming part of new creative efforts is harmful to art and the creativity that is possible. It puts limits in place that the artist has to deal with unnecessarily. Copyright is put into place as an incentive for people to create art. There is no need to extend that incentive on to the artists’ children, grandchildren or businesses. All copyright should die with the artist. - Thomas Hawk

Copyright law needs a complete overhaul. Or more accurately, to be thrown out and rewritten wholesale. - Jim Hearts FF

well, some sort of right to the proceeds generated by one’s efforts is warranted. If that could be accomplished without a set of laws, fine (I didn’t read this whole thread… maybe something like that was proposed). - Jim Hearts FF

I agree. I also believe that once you are dead, your image (publicity rights) should belong to the ages… in other words, public domain. Amazingly, in Tennessee, publicity rights last forever… literally. - Mitch Featherston

Thomas — your statement offers no argument — just sentiment and bafflegab driven by emotiion. If intellectual property ownership exists at all as a concept there it seems most logical to treat it the same as all other property. Do people need incentive to create art? I think it is one of those have your cake and eat things. Basically you can’t. - Brian Sullivan

Copyright ceases to be meaningful when it is allowed to be sold, assigned or passed to abstract entities - corporations with no accountability and a very long lifespan perspective. There are companies out there that do nothing but milk old pieces of music - they are ought of copyright in normal use, but the rights of use in film etc. are still held and charged at a premium. These companies are specialist at snatching those rights from failed projects, estates, and individuals and milking them. - Joelle Nebbe (iphigenie)

Intellectual property simply isn’t the same as real and tangible property. At least, that’s how the law stands now. - Victor Ganata

That’s how it works now, but there’s a bunch of authors who -more or less respectfully - dissent. This debate is as old as the public domain. - Laurent

Well, wouldn’t someone just kill you to make your copyright expire then?? - Dave Hodson

Making intellectual property equivalent to real and tangible property requires state intervention, requires writing new laws. Copyright and patent rights don’t exist without the government backing it up. This is clearly not laissez-faire. - Victor Ganata

The best solution is still probably a fixed term. Something like 20 years, regardless of whether the content creator is dead or alive. - Victor Ganata

Dave: you should write a book about this :) - Laurent

I have yet to see a convincing argument that copyright or “intellectual property” should exist at all. - Tanath

Sure it does Brian, my statement does offer an argument. I’m arguing that intellectual property should be treated different than tangible physical property. Ideas are just that. And I don’t think that an idea ought to be transferable after someone’s death to the detriment of the rest of society. That the benefit of transferring ideas intergenerationally is less than the benefit of allowing ideas to freely flourish unbridled by ownership for society as a whole. - Thomas Hawk

You seem to support the intergenerational transfer of copyrights Brian. Should copyrights be transferable intergenerationally forever if not why not? - Thomas Hawk

I think we should release this thread into the public domain. Because if you don’t say otherwise, std. “all rights reserved” death+70 copyright term applies. Some legal minds think you can copyright as little as 5 words strung together. Now, does anyone still think copyright today is reasonable or sensible? - Richard ¿digame? Walker

This is the internet, remember? US law doesn’t apply globally. :P And actually, common law copyright was thrown out in the US (see earlier in thread). - Tanath

Tanath, I realize that. But I’m not going to take your word for the second part. That is NOT my understanding of current law. You do not even need the little (c) anymore. - Richard ¿digame? Walker

You don’t need the (c) but you DO need to register a work in order to properly pursue infringement cases. - Mitch Featherston

Common law copyright is the notion that copyrighted works ought to be treated the same as real and tangible property, which the Supreme Court repudiated in Wheaton v Peters in 1834. Common law copyright is also not valid in the UK, from what I understand. - Victor Ganata

Yes Mitch, my point. If we do not release this thread into the public domain, someone can steal it and register it. I’m just pointing out how ridiculously things have been stacked against common sense and the “public domain.” - Richard ¿digame? Walker

Tanath, the thought is that if copyright and patents didn’t exist, no one would ever feel compelled to publish anything. Scientific endeavors would slow down considerably as the flow of information would be hampered, and there’d be no way to get anything peer-reviewed. - Victor Ganata

Victor: How do you justify that claim? - Tanath

Tanath, I can’t prove that it’s true, but that’s the idea behind it. But if there were no protections, I really do think the sharing of research would slow. It would be way too easy to steal someone else’s ideas without crediting the originator, and credit for original research is basically the currency of academia. - Victor Ganata

Simple proof of “prior art” would fix that problem. Not that the copyright & patent system works perfectly for that function either. It was Tesla that invented the radio for instance, and only recently that it was acknowledged in court. - Tanath

Thomas — I don’t support any specific amount of time or number of generations a copyright is to apply. Once the principle of intellectual property is established in law as it is in western countries— it will be subject to variances. Arguing for one length or another then becomes an emotional rather than a factual issue. I am thinking that the abolishing of the principle of intellectual property might be the ultimate solution. - Brian Sullivan

Tanath, it’s true that copyrights and patents won’t really deter anyone who is intent on stealing someone’s idea, but without them, the aggrieved party would have absolutely no ability to attempt to gain redress. - Victor Ganata

Unfortunately, Lessig’s supreme court case about copyright terms Eldred v. Ashcroft failed to impress the justices. http://www.wired.com/wired… I’m not very hopeful any of this can be remedied frankly. - Richard ¿digame? Walker

Here is a good TED video “Larry Lessig on laws that choke creativity” http://www.ted.com/talks… - Richard ¿digame? Walker

Brian, I doubt you’d ever see copyright abolished. I do think that someone ought to be able to exclusively earn money from their idea for a limited amount of time. But I think that a reasonable amount of time has been pushed to excessive lengths by big business copyright protectors like Walt Disney. I spent a summer working in Walt Disney’s corporate legal department which was eye opening. Almost everything I worked on had to do with pursuing copyright infringement or doing research to try and come up with ways to further protect works whose copyright had expired. I think a reasonable amount of time might be 5 years. Extending it beyond one’s life though to me is simply absurd. Particularly at the cost to the rest of society in terms of the barriers towards creativity that it creates. - Thomas Hawk

I highly recommend Matt Mason’s book The Pirate’s Dilemma to almost anyone makes (or wants to make) a living from intellectual property http://thepiratesdilemma.com/ - Richard ¿digame? Walker

Victor: I don’t think “stealing” is the right word. That applies to physical property where something is lost. What’s wrong with letting everyone make use of everyone’s ideas? I’d also recommend looking at The Pirate’s Dilemma and Lessig’s talks. - Tanath

Thomas - I had no idea you spent time in the belly of the beast. That’s complete vindication of my suspicions. Thank you! - Richard ¿digame? Walker

I think one of the funny things about this conversation is the constant usage of Disney as the worlds worst offender here. For those of you who didn’t know the character of Mickey Mouse was created by Ub Iwerks (http://en.wikipedia.org/wiki…) and his rights owned by producer Charles Mintz. You could also say that Ub and Walt co-founded the Disney studios back in the day after Mintz fired the Disney animators. Walt had the foresight to buy the rights to his character which at the time was almost never done. If copyright law had not been in place for Walt to purchase the rights to Mickey and maintain him over the years and the rights to the character protected after Walt’s death I have no doubt that the character would be nearly the icon that it is today. - Chris Greene

Yes Chris I mentioned Mickey being ganked in the “background on why Disney deserves derision” - Richard ¿digame? Walker

I just don’t agree with the negative press they get. It’s a two way street. If I create a character while working for Disney I expect them to own the rights to it. It’s the price I pay for a regular paycheck instead of forging out on my own. John Lassiter isn’t complaining that he doesn’t own the rights to the “Brave Little Toaster” after he was fired from Disney for suggesting that they should use 3D tech in the film. This was a guy who was working the jungle cruise ride a few years before. His creative vision and drive took him on to a place eventually where he did get the chance to create unique characters and content. I don’t see him complaining about the new relationshsip between Disney and Pixar. In fact now he get’s his way every time and in my view is making good use of Disney resources and property. - Chris Greene

A lawyer working for a RIAA file sharing defendant recently made news with a radical challenge - “file sharing IS fair use” - Lessig thinks that’s going too far - I’ll follow up later if I find anything. - Richard ¿digame? Walker

Chris - you also are confusing copyright and trademarks. - Andrew C

Chris, I don’t have a problem with “work for hire” - but people should be educated on what’s theirs and what’s the employer’s, and what can be negotiated in the employment contract. - Richard ¿digame? Walker

“Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.”Firstly, copyright is a body of work so Steamboat Willy would be copyright, correct? That lead to the creation of the character and the trademarks that ensue. Disney should own them all which is the point I am making. Ub Iwerks can’t own the rights to Mickey Mouse or Steamboat Willy. Yes I know the Mickey didnt appear first in Steamboat Willy but I can’t remember the name if his first cartoon. - Chris Greene

No, the design of a character and the name is a trademark…that’s a separate issue, however, I find it odd that I have no problems with a company or family being able to protect their trademarks in perpetuity. - Alex Scoble from IM

Richard - I am a working artist and I am very aware of what rights I have to property (intellectual or otherwise) I create under my current contract. If you are not aware of those rights you shouldn’t be working for someone else. - Chris Greene

I’m skipping most of the comments, but tell me if this is right. 30 years after a book is written or movie is made, someone else could redo the work (changed names ect) and it would be legit “recycling” of art? So it’s not really about Mickey Mouse, it’s about the cartoons containing Mickey? - Heather

Chris - yeah, what Alex said. Steamboat Willy the cartoon is copyrighted. Mickey Mouse, the character appearing in that cartoon, is trademarked. - Andrew C

Andrew - That’s what I said, not Alex. Look above. - Chris Greene

Alex, trademarks have to be defended, where copyrights don’t, and trademarks can’t be transferred. So it’s not that odd, really. - Richard ¿digame? Walker

I’m glad to hear that Chris. Good for you. I suppose you have nothing to say to people contemplating such a line of work. They should just “know”, hmm? - Richard ¿digame? Walker

Chris, my point is that copyright has always had a finite period, whereas trademarks can last in perpetuity. So just because the work has passed out of copyright doesn’t mean the trademarks that came out of it have to as well. Also, preserving trademarks doesn’t mean the associated works’ copyright needs to last in perpetuity. And no, I was referring to Alex’s comment that starts “No, the design of a character…” - Andrew C

Well if you;re asking for advice I can put a couple of things out there. First, make sure any original work you create on your own you copyright before you submit to anyone else for distribution marketing etc. As an artists you should know that any work you do while under contract to an employer or as a supplier becomes the property of the employer (or vendor). - Chris Greene

One of the research projects I worked for Disney on (now this goes back almost 20 years ago during college) was to research copyrighted works that had trademarked characters in them. I think copyright at the time might have been 50 or 60 years but trademark was 75 I think. Companies were releasing the oldest mickey mouse films and Disney was trying to argue that even though copyright was up Mickey was still trademarked, thus they could not sell them. Not just Mickey Mouse but lots of other characters. I got to look at a lot of the original copyright agreements between artists and Disney and the paltry sums that Disney paid for some of these copyrights would shock you. I can’t remember exactly but I think Snow White and the 7 Dwarfs for instance was bought for some obscenely low amount of money. Lots of the copyright assignments also included spouses signing off on them and agreeing to give up any rights to their heirs. One of the fun things about the job was that I got to also see Walt Disney’s last will and testament. He left a good chunk of his fortune to start the Arts School CalArts in Valencia. - Thomas Hawk

That’s helpful, Chris. - Richard ¿digame? Walker

Fascinating, Thomas! - Richard ¿digame? Walker

I used to have to send out cease and desist letters also everyday from Disney. They would send them out over the stupidest little things. I remember having to send one out to a guy with a little tree cutting business. A solo practitioner who had put Mickey Mouse on his business card and someone had turned him in. My cease and desist letter would include an acknowledgment form that Disney wanted them to sign and send back. If they didn’t send them back then the paralegal I worked for would get involved and contact them. If that didn’t work then it would escalate to an actual Disney lawyer. - Thomas Hawk

Tanath, yeah, maybe stealing is the wrong word. I’m not trying to equate intellectual property with real, tangible property. I’m not sure what a good turn of phrase would be, though. In an environment where only original work can really guarantee your livelihood (i.e., tenure), I just can’t imagine too many people wanting to freely share their ideas without any protections. The concept of prior art doesn’t really exist without copyright and patent law. - Victor Ganata

That’s very true, Victor - I was able to put some stuff in Creative Commons only because of those protections. I can share “non-commercial” rights and keep the other. - Richard ¿digame? Walker

Well, they vote! - Kreg Steppe

I agree! Apparently they can also be sued by the RIAA. - Logan Lindquist

Responding to a quote wayyy back in this thread (I had to leave for an hour or so, and things really kept rolling!): Tanath said: “Logical Extremes: Public policy is supposed to be about what benefits society, not individuals or companies & corporations.” Actually, that’s not quite true. (I know because I spent many many hours in seminars discussing writings and supreme court rulings on this topic!) Public policy in a democracy, and under our constitutional framework in the U.S., is *supposed* to achieve a fine balance between the ‘public interest’ and that of the ‘private individual’ but there are many protections of the individual to preclude the majority opinion simply running roughshod over everything and everyone they don’t agree with. -more- - Mark Jepsen

-cont.- Libertarians would have you think otherwise, of course, as though any ‘public interest’ is allowed to dominate. There are two flaws with that logic: First, the libertarians equate ‘public interest’ with ‘government control’ when, in fact, they can be diametrically opposed to each other; and second, the ‘public interest’ is often times best represented as a ‘collection of individuals’ rather than a monolithic group. Caveat: Money and political influence (which is usually money at some level) are often employed to skew and distort the delicate “public interest vs. private individual rights” in one direction or another, depending on what suits the “moneyed interests” most at that moment. - Mark Jepsen

Here’s an article that’s relevant: http://techdirt.com/article… “Why Virtual Property Doesn’t Make Sense” - Tanath

The Petri Photo Wiki War - in which I emege Victorious

DISCLAIMER: I am not a lawyer, and I do not wish I were a laywer. So sue me!

UPDATE: “Fair use” clarification, and appeal for reform

“Fair use” is an assertion that can be challenged in court and subject the person defending the assertion to massive legal fees. Hence, I consider it a vastly inferior tool generally. Persons who qualify for a Wikipedia entry should be strongly encouraged to provide a public domain photo of themselves, and in the case of deceased persons, their descendents and friends and colleagues should be strongly encouraged to find and secure a public domain photo. If such is not done, the image of the person will not be a matter of record, and will likely be permanently lost to future generations.

The Polish law that allowed success here was reasonable, but no longer applies. I do not consider current law reasonable in the slightest, since anyone taking a snapshot of anything (for example) has an implied right that extends 70 years past their death. Who will keep every deceased person’s belongings for 70 years so that they can be examined for hidden treasures? The answer is no-one.

Rights should terminate at death unless specifically asserted by an heir, at which point it should be recorded that they are now holding a deceased persons copyright. That fact should be discoverable and traceable so that any person can determine when a valuable item becomes public, giving them a good shot at saving it before it is lost, even when greedily coveted by an heir of the deceased. Even with all of that, there is no law that prevents the heir from destroying the item at any time, even if it is a surviving manuscript of a forgotten Mozart concerto.

Bear with me while I illustrate the consequences of these laws as vividly as I can.

In the case of an heir of an author for example, it will be common for the heir to take possession and assert rights over all works in progress, which is esentially a one-liner stating that so-and-so now “owns” the dead author’s unfinished and unpublished works. In some cases this may be entirely against the author wishes. Death can be unexpected. Depending on the author, that heir may become a person of particular interest, especially when the heir uses their right to deprive the world of the author’s works. In such a case, it is reasonable to expect that heir to be closely watched, and regarded as an enemy of the author’s admirers. The right of the general public to honor and celebrate the author’s memory by publishing the work can be easily defeated by any heir holding a grudge. In fact, it is not entirely impossible that the heir expedited the death in some way, and is truly an enemy of the deceased. Imagine if you will the ne’er-do-well offspring of the famous author (and careless parent.) I believe there is actually a motive here for the heir to do wrong, expedite the death, and either profit from or supress the author’s work.

One remedy for the (newly) successful author is to indentify persons to execute the will of the author, beyond what a normal executor would agree to. Such persons might agree to take possession and publish or destroy items, according to instructions. What to do with the rights (and profit) should be easily and clearly described: “All rights and profits from works go to my children, equally.” Or: “All rights and profits go to my dear publisher, wthout whom there would be no rights or profits at all.” Because of the outrageous copyright term, it is hard to predict the total value of any right, as any work may become “popular” and be extremely valuable during the last 50 years of the term. The reason 70 years is outrageous is this: If an author creates and profits from a brilliant work and dies 5 years later, he will have enjoyed 5 years and other persons will get the remaining 70 Only a ten-year-old brilliant author who dies at 80 will enjoy the same actual term as his heirs.

One thing I have not mentioned is that “heirs” can be replaced by “creditors” and “trusts” and other non-human abstract entities such as “media conglomerates” and “holding companies.” That is the fact that predicts this state of affairs. Heirs don’t make laws; politicians prodded by corporate interests do, however. Now imagine “heir” is a mob boss to whom the author owes money, and has assigned rights to in lieu of cash payment. That is all perfectly legal, except the mob boss and loan part. The number of years “after death” is extremely sinister in my view, as it tends to guarantee that the heirs profit much more than the author, and by heir I really mean “creditor” and by “creditor” I mean “vulture” who made sure the death of the author racked up uncovered medical expenses in the hundreds of thousands of dollars. Such debts always get collected well before a penny goes to the poor little 5-year-old orphan. Do you see the thrust of my argument now?

I hope I have made myself clear as to why current law is so wrong, and why it matters so much.

That last one can now be removed as the Petri biography now shows this photograph:

Let me say first that my irritation with this process is aimed mainly at the legal disaster we call “copyright” or “intellectual property” law. “Death of the author plus seventy years” is enough time for everyone to forget who the subject is and why they should care! This generous (since amended) Polish copyright law allowed common sense to prevail here. The future looks dimmer.

The rest of my irritation is at the way Wikipedia has addressed this. For example, there is no guideline that tells me to take the action I did. I suppose that’s to be expected, but still, I’m pleased that I was able to make a “public domain” argument successfully, given what little I had.

None of this would have been possible without the reply from Stefan Kutrzeba where he told me he didn’t know anything about the photo, but had scanned it in from the magazine, and that he thought these things were in the public domain.

I knew at the outset it was necessary to “go on the offensive.” I’m sure the editors spend a lot of time answering the same questions. I’m not sure  how many public domain arguments are made, or how successfully.

See how Hammersoft gives me the standard line about why permission isn’t enough, that I need to obtain clearance, etc. etc. he obviously doesn’t realize I’m making a public domain argument here!

DreamGuy, may have read up on Polish copyright law, or perhaps he conferred with others in a chat room. I suspect something went on in the period  between DraeamGuy’s question, and the final green light, but I don’t really know. In that time I did check the Polish to English translation again, making sure it said “Phot. Archive.”

“Fot. Archiwum” “Archeewoom.” “Arkevum.” Don’t people realise w is really v and vice versa? And ch and k same thing? Sheesh. Onward:

Note that I never ever responded to questions about who took the photo, and when, and what the copyright was. These are all typical, but my argument  trumps the questions. I could have said “don’t kow, doesn’t matter, please listen” but I think it is better to realize they think I’m an idiot who doesn’t know what “copyright” means in the slightest.  I knew I was right before I started, so I just waited to get their attention, ignored their questions, and stated my case. I think 40 minutes is quite reasonable for confirmation, and it is encouraging that no other back-and-forth occurred. I suppose that makes the title of this post link-bait. So, sue me again!

from Wikipedia’s “Media Copyright Questions” archive 

I’m extremely irritated with this process. Please help.

I do not wish to navigate your image contribution waters ever again. I am attempting to contribute an old photograph of an important person who did not like to be photographed. He is long dead.

I have a source, another rather important person, who I bothered (he’s preparing master classes right now) in order to contribute this photo. He was kind enough to answer promptly regarding the photo.

Now, if a Wikipedia editor would do me the courtesy of providing assistance, I could go on to other more productive work.

The photo in question is of Egon Petri. My source is the Polish pianist, author and lecturer Stefan Kutrzeba. You can see the photo here.

I can explain why this is all O.K. if an editor deigns to help. Like I said, I’m extremely irritated with this process. The photo has been requested; here it is; here am I. Reechard (talk) 20:17, 9 April 2009 (UTC)

• I can not read the language of that source page you noted, but we’d need to know the age of the photograph before making any judgments about its status under public domain. If it is not under public domain, then the rights to the image must be released under a free license by the rights holder in order for the image to be used here under any free license. See Wikipedia:Requesting copyright permission. It is not enough to get permission to use the image on Wikipedia. If a release can not be obtained, the image must be used under terms of fair use. See WP:NFCC. In that case, permission from the rights holder is not required. Since the subject of the image is dead, the use of fair use imagery to depict the person is permissible. Hope this helps? —Hammersoft (talk) 20:56, 9 April 2009 (UTC)
• Yeah, we can upload right away as fair use… but if we knew the copyright status that’d be better. Is “Fot. Archiwum” the credit line? Do we know who that is? When the photo was taken (which would be good for the caption anyway)? DreamGuy (talk) 21:06, 9 April 2009 (UTC)
  • thank you! Egon Petri was born in 1881 and died in 1962. In 1927 he had made his home at Zakopane in Poland, but in 1938 he moved to America. Please refer to Polish copyright law and understand that my source scannned this photo from this Polish magazine, and it had no copyright notice attached. “According to the Art.3 of copyright law of March 29, 1926 (valid until 1952) and Art. 2 of copyright law of July 10, 1952 of the People’s Republic of Poland, all photographs by Polish photographers (or published for the first time in Poland or simultaneously in Poland and abroad) printed without a clear copyright notice before the law was changed on May 23, 1994 are public domain.” That makes it pretty clear-cut, don’t you think? The photo is eighty some-odd years old, taken in Poland, printed in this magazine, and is one of the only known photos in existence of Mr. Petri. Reprinted in the same magazine in 2006, in an article by my source, about Petri. The photo caption says “Photo archive” meaning it had no photographer credit, no copyright. Reechard (talk) 21:52, 9 April 2009 (UTC)
  • I’m planning to establish more facts about Egon Petri, I mention that on my User Page, thank you for helping me clear this important hurdle first. I have two sources to draw from which you can see here if you like.Reechard (talk) 22:05, 9 April 2009 (UTC)
  • Sigh - where did you guys go? Here is the rather poor Google translation from the Polish, which shows clearly the caption says “Phot. Archive”. Should I upload this? I’d prefer it if you did, frankly. Pretty please! I’ll check back later. The Petri talk pages specifically requests a photo, by the way. Reechard (talk) 22:39, 9 April 2009 (UTC)

OK, got it…. when you go to Special:Upload to upload the photo, don’t choose one of the default licenses, just put a {{PD-Poland}} tag in the summary field (along with the rest of the summary, and then fill the rest of the page out. You should just be able to do it right away, but if you have problems post back here for help. DreamGuy (talk) 22:34, 9 April 2009 (UTC)

• thank you x 100 will do it now. Reechard (talk) 22:43, 9 April 2009 (UTC)
• I think it worked, it has that re-assessment warning though, I’m assuming that comes with {{PD-Poland}} Anyway, good enough, I’ll put it to use now. Thanks again DreamGuy! - Reechard (talk) 23:05, 9 April 2009 (UTC)

Needless to say, it’s not quite the entire story. This thread between myself and two editors was preceded by more frustrating navigation around Wikipedia, in an attempt to clear legal hurdles.

This legal clearance bar is set so high that most people will give up and walk away. I certainly don’t plan on doing much more of this sort of thing, unless I can streamline a process, and contribute lost items from a certain Polish magazine that fall within a timeframe, for example.

 

Update on 20090410 at 19:00 by richardwalker

Carefully reading DreamGuy’s question:

“Yeah, we can upload right away as fair use… but if we knew the copyright status that’d be better. Is “Fot. Archiwum” the credit line? Do we know who that is?”

leaves me wondering whether I may be qualified for editor-hood because of my knowledge of more than one language in addition to whatever knowledge I have about law, music and technology.