There’s nothing intellectual about intellectual property law

Fairley's famous poster came from an AP photoAs a writer in the new media space, I get press releases all the time, and one arrived yesterday from The Associated Press. I’ve gotten many from The AP since “the coöperative” began feeling the disruptive effects of new media, but this business with artist Shepard Fairley and his now famous Obama picture is producing a steady stream.

Fairley and The AP have lawsuits pending over the source photograph that Fairley used to make his painting. It was taken in 2006 by an Associated Press photographer, and The AP believes that Fairley’s use of it was a violation of their copyright. ABC News president David Westin wrote in the Wall Street Journal Friday that this is not “a dispute between a large company and a single individual over money.”

…the principles at stake are greater than that. News organizations such as the Associated Press (and, for that matter, ABC News) invest hundreds of millions of dollars each year in gathering the news and reporting it to the public. In the case of the AP, that number is more than $350 million, spent to send reporters and photographers to wherever news happens whenever it happens, whether in dangerous war zones or at local school-board meetings.

If news organizations are to have the resources to cover the news, then their reporting must be worth something — either to other news organizations that pay for it (in the case of the AP) or to advertisers or to the ultimate consumers of the news. The AP happens to be a not-for-profit organization that reinvests whatever earnings it may (or may not) have in a given year back into its newsgathering operations. But the principle is the same whether the organization is for profit or not.

I agree with Westin in that the principles at stake are huge, but it is exactly these principles that need thoughtful examination in our hyperconnected world. Bring on the light of investigation, because we’ll need it to cut through all the crap about the issue of copyright in our culture.

Westin goes on to cite the thinking behind the origins of copyright law, and this is where he — and everybody else in this debate — loses me. I’m an artist, and I always hate it when others — the “industry” types — attempt to speak for me on this issue. Copyright is not now, nor has it ever been, a part of property law. The term “intellectual property” has been created by contemporary attorneys (remember, they run the legislatures, too) as a catch-all for copyright, trademark and patent laws. But copyright is not the same as a patent or a trademark, so if we’re going to cite the origins of copyright, then we have to be big enough to accept those origins, and not some bastardized, contemporary version just because it happens to help our case. The Sonny Bono “law” was sloppy, sloppy thinking, and there are now efforts to extend that forever!

Those who benefit from copyright-as-property are not the artists themselves, despite all the lofty language coming from people with a big dog in the fight. And artists think that copyright should belong to them, not some “studio” or “media organization” that needs to control it as property in order to justify profit. In Britain, 140 of the country’s top artists and musicians have organized to form the Featured Artists Coalition, a group that aims to speak collectively on behalf of musicians, instead of the music industry. In an article in The Independent, rock artist Billy Bragg said they want no part of suing fans who download their music. “We side with the audience,” he said.

What I said at the meeting was that the record industry in Britain is still going down the road of criminalizing our audience for downloading illegal MP3s. If we follow the music industry down that road, we will be doing nothing more than being part of a protectionist effort. It’s like trying to put toothpaste back in the tube.

Bragg added — and this is the crux of the matter — “Artists should own their own rights and they should decide when their music should be used for free, or when they should have payment.” That’s exactly what copyright was created to protect, the artists and their rights. The idea of copyright as a transferable property is a 20th-Century, modernist ideal.

So, please, can we lose the argument that this is all about protecting the artists and spurring innovation? It’s not. It’s about lining the pockets of the copyright cartel. So far down this path we have gotten that Congress is now exploring legislation (the Performance Royalties Act, H.R. 848) to force radio stations into paying fees for the songs they play. This is preposterous, given the “free” promotional time the record labels are given over-the-air. But it’s an illustration of the greed of the record labels (the artists get jack) and the ease with which Hollywood can influence the lawyers who make up the House of Representatives.

Creative works belong to the people after a period of time when the artist can monetize his or her work. Anybody who writes music, for example, knows that a particular “lick” or “hook” is something they can benefit from, only because they “heard” it first. This is the humble acceptance that comes from being connected to creativity’s source, and only artists know what that means.

So in the case of The AP versus Shepard Fairley, that photograph was clearly Fairley’s inspiration, but he is the one who “saw” the poster, and it belongs to him. I do think crediting the photographer is the
Andy Warhol's Marilyn Monroe tributeright thing to do, but we live in a world where that opens a problematic door for exactly the kind of “pay me” response that we’re getting from The AP. Argue with me if you wish, but if I was that photographer, I’d be deeply honored that somebody turned my time and chance into something so extraordinary — the visual symbol of a new age in American politics.

And don’t even get me started on Andy Warhol’s Marilyn Monroe painting. In 1953, photographer Gene Korman took publicity photos of Ms. Monroe for the film “Niagara.” Ten years later, Andy Warhol used one of them to create a colorful array of works that didn’t benefit Korman.

Then, too, what will we do with the remarkable Ophir Kutiel, known to the YouTube world as Kutiman? This guy has released an “album” of cuts made from sophisticated mash-ups of individual efforts he found on YouTube. Are we going to sue Kutiman, or are we going to recognize his work for the genius that it is. If you’ve not heard it, listen here. The guy’s work is about as creative as it gets.

Protecting the products of newsgathering organizations is something that our culture needs, but we simply cannot use copyright in its existing form. It was fine for a period when the publishing of anything was a major task, and it was there to protect the creator of that which was copyrighted, not some big business that’s pedaling it as property for profit. Even in the Fairley case, the photographer who actually took the picture, Mannie Garcia, insists that he owns the copyright, not The AP. If anyone should benefit from Garcia’s own work, it should be Garcia.

In today’s hyperconnected, everybody’s-a-publisher world, copyright doesn’t work, and the law needs to be rewritten. Now if we can just keep the lawyers out of it.

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