Author: Leslie Burns

First off, I want to make it clear that I think ASMP is (still) a great organization made up of people who have the best intentions to help photographers. Unquestionably, that is so. They do a hell of a lot of good and I am still a proud member. Also, with the changes in the economy I applaud their efforts in trying to help the industry figure out new and better ways of exploiting the intellectual property photographers create and how they work with clients. Now is definitely the time to evolve.

That being said, I am extremely concerned about ASMP’s recent interactions with Lawrence Lessig. He was one of the speakers at the recent Copyright Symposium and, although I can understand giving “the other side” a voice, I think he needs to be ignored/silenced as much as possible. Mr. Lessig is a brilliant man, but he has done more harm to small creative businesses than any other single human in the US, in my opinion. And he continues to be dangerous.

Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. Many have lost their businesses and seen their professional dreams crushed. The idea of “free” content and “free culture” is very much his personal responsibility. His past writings and lectures indicate he did intend exactly what he has achieved culturally, to the detriment of small creative businesses. See the wikipedia entry on the Free Culture movement, and this video of Lessig himself at copybyte.com/z/w4 .

Recently, however, Mr. Lessig has (sort of) changed his tune. He is now claiming that he was trying to get the idea of licensing to the masses and that his intention was to fight against the big business corporate “abuse” of copyright. I’m skeptical. While he may be anti-corporatism (a good thing in my book), I think he still does not see the needs of the little guy and, thus, his idea of balance is off.

For example, he still speaks out against the laws eliminating arcane formalities in order for protections to apply. He claims, in the video cited above, that requiring the formalities was good because it limited how much IP is protected (reducing the number of IP monopolies). He claims that extending copyright terms has no justification (in originalist constitutional policy) but rather was based in modern big corporatism (he doesn’t even consider the extension of the human lifespan over the past 200+ years as well as how there are new methods of exploitation). And sure, Disney benefits by these laws, but so does Bob’s Photography. He misses that completely.

He spins the issue very well, as a good lawyer should, especially an academic one like him. Yes, we need to find new approaches to exploiting the rights of photographers (& other creatives), but his way has most definitely not been the way. Yes, copyright may impede some creative growth, but what about all the incredible creative growth we have seen thus far in our society? Growth done WITH these “onerous” copyright laws? More and more creativity just as the laws have gotten “worse” in his view. How is that possible, Mr. Lessig?

Additionally, at the end of the video cited above, please note that Lessig talks about his new crusade: anti-corruption. Gosh that sounds great, but when you look more closely at what he is saying, it seems to me that it is more of a call to anarchy. He mentions earlier in the lecture that he thought he’d win in front of the Supreme Court and when he didn’t, he discredited the rationale and thinking of the court. Then, he talks about how we have relied on courts to interpret our laws and how maybe that isn’t such a good idea anymore. Really? We should overturn centuries (going back to the Magna Carta, and beyond, really) of reliance on the rule of law as interpreted by people who have devoted their lives to the law and, instead, let the people decide? Really? The same people who think President Obama is a foreigner and that Palin is smart?

To paraphrase Monty Python (The Meaning of Life), the people are not qualified to make the decisions the courts make. Interpretation of the law is a highly specialized intellectual skill (I’m definitely learning that in law school!). Although we (the people in general) have access to more and more information on diverse topics, the knowledge of the people is paper thin in depth, quite often. We the people do not know everything and although we know more than ever we often do not know well that “more.” For example, I know enough about how a combustion engine works to be able to tell my mechanic that I think the problem is in the fuel system, but I am not at all qualified to repair my car.

Moreover, we have to have some faith that our institutions, as flawed as they may be, will continue to work. That’s fundamental to society– faith that the systems we have created will work. So, yes, the courts get it “wrong” sometimes, but they get it right far, far more often (we just don’t hear about the right as much in the news). I cite the state of California for how not having faith in our systems and letting the people decide mean that nothing ever gets done. Here in California, the people vote on proposition after proposition, overturning what the legislature does, meaning well but not really understanding the issues and ramifications of the details of the propositions, and then complaining when the system doesn’t work. Well duh! It’s no wonder this state is circling the drain in many ways (although it is a huge shame).

My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good. Just like it sounds like a great idea for Californians to get to vote on every issue, in reality, it makes things worse. Lessig’s arguments about stifling creativity sound very good, but they are well spun and ignore the reality that creativity has hardly (if at all) been stifled by the laws we have. We, as an industry, must not be taken in.

I hope, most sincerely, that Mr. Lessig has indeed seen the errors of his ways and that he will now contribute to improving the lives of creative professionals. He owes it to them after the damage he has caused via CC, etc. But he has not fundamentally changed his tune, just his spin. And until he proves himself no longer a real enemy to the best interests of photographers and other small creative businesspeople (and I do not use the word “enemy” lightly!), we should not entrust him to be anything other than that which he has proven to be.

APhotoEditor has posted about the tribulations of Daniel Morel, a Haitian photographer who posted images on Twitter which were then used by AFP without permission of the photographer, etc. The photog is upset and sent his lawyer after the “infringers.”

Sadly, here, it doesn’t look like there were any infringers, legally-speaking.

I know this is going to piss off many of you, but the photographer screwed up. He posted his images without taking steps to make sure he wasn’t giving away too many rights in the doing. As professionals, every photographer must take those steps. It’s a (big) part of your job.

Here, the results suck for the photographer. It didn’t have to be that way because Twitter has incredibly clear TOS which include the following:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

After that, they even go further, explaining the rights:

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

One read would have been enough to say “no, this won’t work.” But he didn’t bother. Morel’s own attorney has been quoted as saying “Mr. Morel had no prior experience with Twitter, the social networking site and did not read the Terms of Service.”

Well, there you have it.

Moreover, you can’t have it both ways. I’m sure that any photographer who submits T&Cs with his/her estimate and invoice expects those terms to be respected. Why shouldn’t Twitter expect the same?  Everything else that happened (AFP’s involvement, etc.) evolved out of that one mistake.

The point of all this? READ THE TOS FOR EVERYTHING YOU USE. Sure, it’s hard and boring and not what you may want to do, but it is your responsibility to protect your rights. You can’t claim ignorance. Certainly you can’t claim ignorance and then get upset when your own clients (and others) do the same when they violate your terms.

Do the right thing for your work and your business. Read TOS and T&Cs and do not use services that grab too many rights. Yes, many of those services are easier than finding alternatives, but the price for that ease is too high. In this case, in the rush to get his images out to the world, Mr. Morel appears to have (essentially) given them away.

(remember, I am not a lawyer, just a law student, so none of this should be taken as legal advice–it’s just my own opinion and musings)

Well this one was a puzzlement, to quote the King of Siam. Was it just too weird? I dunno, but I did not get many submissions. Lots of talk, but few actual submissions. As the kids say WTH?

But for those who did, I think they reflect what I was hoping to show: that given any particular stimulation, the results are individual.

Wait, that sounds too scientific… what I mean is that we each get input from the world around us and what one makes of that is a reflection of the artist’s individual vision. It is that difference that make you the artist you are and not the artist your friend Bob is. And that is really, really important these days.

More and more we are seeing how technology had not only lowered the bar, but rather deleted the bar. Anyone can (technically) be a photographer today, and many people are trying it (see all the “i-reporter” kinds of submissions!). So, if you want to make a business of this business, it is ALL about bringing something else to the party. That is your vision, your creativity.

So these artists who did submit, they all listened to the piece and got something out of it that inspired them to make these images below. Each got their own vision from the input. There is a lot of variation in these images, and I’m glad for it. I love the different directions people took. I’m fascinated by the druid-y-looking dude who, if you look closely, is wearing a dress-shirt and tie and the Floatopia image is a great PJ-related solution. Overall, there is a mix of sensuality and sensuousness (look them up, they are different things though most people don’t know that) in all the images that reflect the spirit of the music.

Bravo to all of you. And thank you for sharing!

One thing: the first 3 images are (obviously, I hope) a series. The rules for these assignments have been pretty flexible so I decided that it wasn’t a problem–they are clearly a collective “whole” so, there you go. After that each image is an individual submission; and all of the thumbnails are linked to larger versions, so click to see them.

Okay, I’m swamped and I’m hearing that some photogs are having issues getting their assignments in so I am EXTENDING the due date for Assignment No. 3. It is now due by 11:59pm (PT) on Monday, April 12.

Get ’em in, people!!!

🙂

Seth Godin’s post today got me to thinking. In it he writes:

More and more, businesses and businesspeople talk about their rights.

It seems, though, that organizations and individuals that focus more on their responsibilities and less on their rights tend to outperform. [emphasis in original]

You’re responsible to your community, to your customers, to your employees and to your art. Serve them and the rights thing tends to take care of itself.

I know a lot of people are going to disagree with me about this, but I think that in many ways, he’s right.

Now, I’m not saying you should ignore your rights–not at all. You need to register your images and go after infringers, absolutely.

No, what I am saying is that I’ve noticed that those people who talk about their rights all the time, especially to their clients, are really rather off-putting. No one wants to get a lecture from a vendor. People want to hear good things from their vendors. They want to hear how you are going to solve their problems. They don’t want to hear what your problems are.

This goes hand in hand with being positive, especially when it comes to any interactions with your targets/clients. Don’t put yourself down, don’t talk about how you “lucked out” and got a shot. Don’t talk about how hard things have been or even how your kids have been sick. Basically, don’t talk about you.

Talk about them.

When you focus on your targets and their needs and wants, sure, you are going to talk about you a bit, but in the context of helping them.

The other side of Seth’s post, about responsibilities, is equally important. When I hear photographers having fits over indemnification clauses, my first thought is “why are you afraid to guarantee your work?” A well written indemnification clause in a contract is essentially saying “I am willing to back up my promise that this is my work, that I’m not infringing on anyone else’s rights, with a promise to pay for the legal costs if I screw up.” Giving a promise, a guarantee of your work, shouldn’t be a big issue and it does a lot to comfort your clients.

Rather than fight these clauses I’d suggest getting your lawyer to write a good one for you and then pointing it out to your clients! “In paragraph 4 I’m guaranteeing that my images will not infringe on anyone else’s rights, so you’re covered.”

By the way, if some third party did bring suit claiming you infringed on their work somehow with your images, well, that is why you carry E&O insurance.

My point is, no one like a whiner, and when you put your energy into reminding your clients about your rights you can come off sounding pretty whiny. But if you focus your energy instead on their needs and how you can solve their problems, you become a positive hero to them. That gets you projects and builds your reputation, in a very good way.

ASMP, along with other visual artist groups, is going after Google for its massive copyright infringement. Huzzah! This is great news for artists.

It’s a class action and is a very, very large undertaking. This won’t be cheap or easy, but it needs to be done and is being done for the benefit of all artists who are getting ripped off by Google, and similar organizations (“sharing” b.s.). Support your creative professional groups in this and let’s root for the home team here!

Go artists!

Time is getting tight… are you working on your submission for Assignment #3?

The March episode of the Creative Lube podcast is up and available for purchase. $8 per episode. This one is on your narrative.

If you enjoy it, you should subscribe for a year for $80 (a more than 16% savings off the per episode price).

Please note that subscriptions start on the date of purchase and do not include previously released episodes.

URGENT! The President wants to get input from creative pros! This is your opportunity to be heard about the importance of © in your life! Here is a pdf from the Copyright Alliance explaining things and telling you where to write: http://bit.ly/cjDZJt

Ah Spring. Yes, this assignment is about Spring, but not exactly as you may expect. Rather than say “make some image that represents Spring,” I want you to listen to, and watch, The LA Symphony performing Igor Stravinsky’s The Rite of Spring and use that as your motivation to create an image.

Lots of you may have never heard this, some of you will know it, but I’m betting that relatively few of you know the backstory. This piece was shocking at its debut. Here is a very short explanation and here is another (both from NPR). Just something to give you some context as you listen and, perhaps, to fire your grey cells a bit more.

Here are the links:

Now clearly, this is a very free-form assignment. But I think it has a lot of potential for interpretation and results. You are going to have to think about this. No easy “here’s a pretty flower just ’cause it’s Spring” will do. And I think some of you may try to find an excuse to bail on this assignment. This one is challenging–there is no easy solution. For some of you, you are going to have to reach into yourselves a bit more to process enough to make something from this–especially if you don’t listen to music like this much.

It’s an amazing piece of music so at the very least you’ll get exposed to it. And music is very, very close to the hearts of many visual creatives–from my experience the vast majority of photographers (and designers, etc.) play some instrument. So even if you don’t like it, listen to it (over and over, as needed) so that you can appreciate it, even if it isn’t your thing. Art is that way–sometimes the aesthetic just doesn’t work for someone, but the thinking, the work, can still be admired and, thus, be inspirational.

So, here is the skinny: make an image that somehow expresses Stravinsky’s The Rite of Spring. It can be one particular movement, the whole, or the emotion it evokes in you… I leave the specifics up to you. And because this is so free-form, if you want to include in your email some of your thinking– understanding that I may share those with the results when I post them— that would be fine.

Due Date: FRIDAY 09 April 2010, by 11:59PM (PT)

Email your jpegs (no larger than 1200px on largest dimension, 72ppi) and please include your last name in the file name.

Finally, please share this assignment with your friends and colleagues. Illustrators and designers are welcome to submit as well! Tweet/FB/blog about this… let’s get the word out to get more people participating.