Consent

When an infringer gets a letter from me, sent on behalf of one of my clients, a very popular response is something like “It’s just a photo—why are you making such a big deal out of it?!?” The short answer is because it really isn’t about the work itself—it is about the invasion of the artist’s personal/professional space and the lack of consent from the artist for that. 

A big part of copyright is the right to say “no.” And yes, there are such things as compulsory licenses for music, but that’s another story (to me, those licenses are not fair to artists). Anyway, that right to say “no” is closely tied to our inherent right to personal, corporeal privacy, as humans.

An example: what is the difference between sex and rape? Consent. That’s all. Otherwise, technically, the acts themselves can be identical. Humans have the inherent right to the privacy in and of their own bodies and can choose to share their bodies with another without losing the right to say “no” to a third party. Just because I choose to have sex with Mr. X doesn’t mean everybody else gets to have sex with me. Sorry if that is too visceral for you, but the analogy is spot-on.

But, you might be thinking, that’s an easy argument: no one is going to say rape is okay. Sure, but consent isn’t only sexual. Moreover, its loss is profound. Indulge me in a true story…

When I was a sophomore in high school, a French exchange student stayed with us for a few weeks. When she arrived, she brought presents for everyone, including a lovely bottle of L’Air du Temps perfume for me. I have no idea how she knew it, but I love that scent. I was thrilled! At the time, I still had some left in a previous bottle, so I put her gift in the closet, still wrapped and sealed in its fancy box, for when I ran out.

My next older brother, around that same time, had recently graduated college and was living with our mom and me in our tiny two bedroom apartment, while he tried to figure out what he was going to do with his BFA and utter lack of a work drive. He was our mother’s favorite so she was happy to have him home. He still had a girlfriend in Cincinnati, where he had gone to school, though.

One day, a few months after the exchange student had left, I came home from high school to find him clutching my gifted perfume. I said that it was mine and he said he needed it to give to his girlfriend for her birthday. I said “no,” that he should buy her something with his own money, and I took the bottle back. He called our mother, who angrily took the bottle from me, handed it to him, and chided me for being so selfish because he needed it. Mom was very sexist and I knew already that I had to serve and clean up after my brother, but this was too much. I balked; she got more angry and I got in more trouble. Meanwhile, my brother smirked and went on his way, with my present now his.

To this day, I feel the powerlessness of that moment, the violation. It wasn’t about the perfume—it was about how someone could just take from me and, on top of that, how I could be told I was wrong to feel as I did about it. My space was violated. My rights were ignored. And I was guilted for knowing and saying it all was wrong.

That is exactly what is happening today with technology and creators. 

Today, companies like Spotify are, from their multi-million dollar offices, calling musical artists “greedy” for trying to get paid something more than teeny fractions of a penny for the use of their works on such platforms. Companies like Pinterest have made billions using images that it didn’t license; hiding behind a safe harbor created by Congress to protect tech companies. Don’t get me started on Google. And little companies are following in the big ones’ footsteps. Businesses large and small rip off my clients and then get pissy when I hold their feet to the flame. Artists are made to feel dirty and somehow wrong for demanding their due.  

This must stop. You are doing NOTHING wrong by demanding money from actual infringers, large and small. You are doing nothing wrong by demanding that your rights be respected, including your right to say “no.” Yes, you create your art to be seen/heard/experienced, but you have the right to decide who gets to see/hear/experience it. Don’t apologize—it is those who take and use, without even asking, who are doing wrong, not you. The infringers are not victims, no matter how much they try to spin it that way.

To that end, that is, to fight the infringers’ whines of victimhood, stand up to them, call them on their bullshit, and help your creative brethren in all fields do the same; in other words, don’t take anyone else’s work and do not use the companies that hurt other artists. Support other artists’ efforts as well as your own. Fight against those who ignore artists’ rights, including their (your) right to consent. But, most of all, be proud of who you are, the work you create, and of defending your rights.

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