Stifling Creativity..

[John Thawley]

Many of us often find ourselves on both sides of the copyright issues. By it's very nature, the digital culture automatically produces copies.... I know I've realized that once I put an image on the web, in reality, the toothpaste is out of the tube. I've also realized... get over it. When I weigh the benefit my business and reputation has gained, compared to any "real revenue" I've ever gained from lo-res internet images, there's literally NO COMPARISON.

So... here's a phenomenal argument regarding where digital copyright and the creative world need to get to. This video is not necessarily the most entertaining... AND it WILL require you to concentrate to follow along. If you do that, I promise that by the end, your jaw will be open and you'll have a renewed consideration of where we need to go next.

Enjoy!

How creativity is being strangled by the law (http://www.ted.com/index.php/talks/view/id/187)

[Grant Zoschnick]

Thanks. I actually found it very engaging. This is very true but with regards to the laws not changing I don't find I agree. I personally believe we are on the verge of change with regards to copyright law in America. If we sit stagnant and don't embrace the change we will be left behind. With the increase of creative venues for everyday people to show their work it won't be long before they seek protection for what they are doing. As mentioned in the video what these people are often doing is rehashing current media and copyrighted material. All it would take is a Napster level class action lawsuit to bring this problem to lawmakers eyes.

-Grant

[Jim Sykes]

I have to say that I disagree whole heartedly with what he had to say. I think that what he suggests leads us down a long slippery slope that will ruin the creativity that he seems to want to embrace.

Couple points.

I dont like his BMI example as it is exactly what we in the photo industry fight against every day. The lowering of quality based on price alone.

In his example BMI took lesser quality music and made it less expensive. The broadcasters went with the lower quality content solely because it was cheaper. The listeners lost out on the better music because decisions were made based on price. In the end, the "better" content had to lower its pricing to compete with the lesser.

This goes on every day as we have to fight against the pricing of amateurs and people that dont hold value in their work. Businesses are purchasing photos based on price and not quality. This forces those that produce quality to lower their rates in order to compete.

As a result, the entire bar has been lowered. Photographers are making less money, working harder to make what they do and the overall quality of all work has been lowered as a result. And to prove it, just look at some of the crap that is published in all forms these days and compare it to 10 or 20 years ago.

Secondly, all I could think about while watching his video examples is why should those kids be able to take the work of others to help themselves?

In the past, if you did a movie or video you needed to create everything including the music, or you payed someone to do it for you. Why should that have changed now just due to the digital age? Why should a movie maker now be allowed to use someone else's created work for their benefit? Why should they not have to create the ENTIRE project now as they would have in the past.

Again, my feeling is that it doesnt encourage creativity, it stifles it because I can take video that was already produced, I can take music that was already produced and all I need is a $1500 computer, as he points out, and cut and paste and splice and call it my own creative work. That is BS. I created nothing. Just cause I can work a computer and a video editing program does not make me creative.

Bad argument and it lowers the bar for creativity. Again, you need proof, just look at all the utter crap posted on the net these days. Anyone with a computer and handycam and access to iTunes thinks they are the next Spielberg.

He talks about how simply viewing stuff on the internet has already technically violated copyright simply due to the fact your computer has downloaded and copied the photo or whatever to it.

I argue that is not a valid argument because the mere fact that I post one of my photos onto the internet implies my permission for the user on the other end to copy my photo to their computer strictly for the purposes of viewing my website.. I've given them no further rights, but I have implied that if I put my photo up on my site, I want people to look at it and I've given them permission to do so in the digital world. No copyrights have been violated unless they take that photo and keep it on their computer and use it for something other than my intended use, which was simply to view my website. His argument fails.

Lastly, for now, I'll just comment on his closing statements. He says that not allowing the more free use of content is corrosive on the creativity of society and our children and makes them live breaking the law, therefore we need to change the law so they dont live as lawbreakers (I forget his exact wording).

Again, I disagree tremendously with that statement. Lets ignore what is right (protection of copyrights) because we cant stop it in the digital world. Lets ignore what is right, because our kids will just break the law anyway and we dont want them to grow up as lawbreakers. Therefore, ignoring what is right, we need to alter the laws to simply accept what is going on today.

WRONG. The law does not need to change, the law needs to be enforced and these kids need to learn how to be more creative and create their own works in totality. NOT use other peoples stuff and call it creativity. Unlike his airplane example, which is completely common sense, changing copyright laws is not so cut and dry. An airliner flying over my house does not hurt the homeowner in any way. And BTW, there are times when flight patterns ARE altered from over peoples homes when damage or problems are created by it. Think noise restrictions, etc. However, back on point, the allowance and the loosening of copyright laws will and can most definitely hurt those producing those works.

The mention of not changing the laws being corrosive is ironic in my eyes as I find that the IDEA of loosening those laws to be what is the most corrosive. It will only discourage the really talented people from being created. It will only lead to more problems with copyright infringement as people push the law to see how far they can take it. It will only corrode the rights of those creative folks the point that no rights will remain. It pushes the law down that slippery slope until all rights will eventually be gone and simply the creation of something will put it into the "fair use" category. Then, what happens? That creativity he longed for so much will be gone.

I dont like his arguments, I dont agree with his arguments and I think he is simply wrong in his conclusions.

BTW, I wonder if he got those images he used in his presentation free off of flikr cause some kid was "flattered he wanted to use my image" or if he actually paid for them from a real stock agency (and I dont mean microstock)? My guess is the former...slippery slope has already taken hold.

[John Thawley]

Just cause I can work a computer and a video editing program does not make me creative.

Oh my.

In that case, just because you can hold down a shutter doesn't either. :( I guess you're not creative?

Creativity is a mental process. So are (or should be) laws. The slippery slope you describe will steepen via rigid old fashioned thinking. As a society, we need to adjust and think through problems. Just because "that's the way it's always been" doesn't mean we shouldn't explore ways to grow socially and as a culture.

We have been on the planet 4 million years. We started as bacteria. We will be extinct in another 4 million years. So, in short, the story of human beings is half way through. From a germ to what we are today in 4 million years? I can't fathom the next 4 million... or the other half of the story.

Copyright has it's place.. and while you site your position on BMI, you totally ignore the price fixing/gouging of 400% increases conducted by ASCAP. I realize that didn't fit your predetermined position... however, it completely negates the free market system.

Yep.... people are lowering your prices. So what? People have been lowering prices for as long as there have been prices. It's competition. Copyright laws are not their to shore up your position in the market place. You should succeed based on the quality of your work and services you provide. It is NOT about your creativity. And creativity should be encouraged.

Should I be allowed to steal your work to promote my business? No.

There was the same argument made when VCRs arrived on the scene. And cassettes.. these were all going to kill the artistic community. It didn't happen.

What did happen is artists struggle because record companies and movie producers (with zero creativity) manipulated distribution shares from actors and artists. The "true" creatives don't really share fairly in the revenues.

While you make a fair argument about the real estate/flight plan analogy. You completely miss the point. YES... if overhead planes are causing DAMAGE to me, I have a right to go after some sort of change. However, the true comparison to SOME copyright enforcement is the equivalent of my demanding compensation because Northwest Airlines is flying in my airspace and I OWN the rights to the airspace directly above my property. ITS THE LAW. The same if I have lake frontage... I own a pie shape section from the waters edge to center of lake.

But... as REASONABLE members of society, we find a way to make it work.

I broke the law last week. My five year-old plays basketball. I shoot the games for me and members of my family to enjoy watching him grow. I'm not in the kids sports photography business, nor do I want to be. As a "treat" to the other families, I've shared the photos. And just last week, I created a slide show of the kids, put it to music and gave each family a copy. I BROKE THE LAW. Right?

The thing is, such rigid application of the law doesn't make the laws better. It creates dissent and disgust for all the laws.

No one is saying throw out the copyright laws. Just that it is time to review them with a certain modicum of COMMON SENSE.

And if you can't compete against lower prices... if you can't provide your customers with reasons to use your work as opposed to cheaper work, you don't deserve to survive. If the ZUNE came about and was as thin as a business card and held 40gb at half the price of an iPod, they'd sweep the market place. You're saying they shouldn't be allowed to do that? If I find away to provide my images to a wider audience, faster, cheaper and yet still maintain my profit structure, you're saying I shouldn't be allowed to do that? Should CNN stop accepting their iReporter footage and photos? What about the new generation of print on demand book publishers? Perhaps you shouldn't be allowed to print your own book for $40. Go to a publisher and buy 10,000 just like Ansel Adams had to do. And while we're at it... quit printing photos on your Epson. Get your ass in the darkroom or down to the photo lab and pay through the nose like film shooters had to do. And, we should roll back those one-hour guys while we're at it. That's not fair. Just because they can automate the process.

The world is changing and as business people and as CREATIVE people, we better be prepared to compete. If you're relying on our government to protect you, you're in for a rude awakening.

[Todd Corzett]

I think the biggest problem here, as with most debates, is that both sides are very unwilling to compromise in any way... as they believe it will lead to them getting the short end of the deal. I really think that there must be some level of compromise made, by both sides, or neither side will ever stop doing what they are doing currently.

The examples given by the speaker were interesting... the one that really fascinated me was the one about the farmer and his chickens that were flying into the wall. It does seem really silly to require an airplane to get permission to fly over anyone's land, but it's also a little short sided to think that some level of care should be given to those you are flying over... and what financial ramifications it may have (like dead chickens).

Translated to photography... it does seem a little silly to make every use of an image require permission (ie some high school kid's physics report on motorsports that uses an image of a car in a turn), but it's also not right to be inconsiderate of the owner of the image (posting your physics paper on your blog for the world to see, copy, use, and abuse).

I think that there needs to be a very strong line drawn in the sand when it comes to compensation (financial or otherwise) due to the use of copyrighted material. If something is copyrighted and you are not the owner, fair use ends (abruptly) the moment you will be compensated (and I would include banners and other stuff on websites).

How does this relate to creativity? Well, I think it should be similar to the chicken farm owner... consideration should be made. I think the remixing of the anime is quite creative (even funnier is Disney cartoons talking about fair use: Click Here (http://community.automotivephoto.net/forums/showthread.php?t=1073)), but doing so without consideration for the creator of the original works. I'd not be happy if my photos were used, creatively or not, in a manner that I did not agree with. The thought that keeps popping into my head is... if I didn't create this it wouldn't be here... I want to have some level of control over my creation.

If that comes at the hinderance of other's creativity... well, yes... my control is more important than every other creative use. I'm sorry if makes the world more 'RO', but I'd rather have total control than none at all. Would the world be a more 'RW' society if everyone was forced to keep things to themselves to keep them from becoming public domain? I guess we should change our thinking and be happy with creating in itself... but I know for one that I'm never going to think that way. I created it, it's mine... forget society... if they can't be creative pay me to be. :D

-Todd...

[Chris Clark]

I saw the link to this article over on SportsShooter, thought it might be relevant to the discussion:
NYTimes: Is the copy artwork? (http://www.nytimes.com/2007/12/06/arts/design/06prin.html?_r=2&oref=slogin&oref=slogin)

It will be interesting to see where this discussion leads, and what becomes of copyright law. I find myself on the fence: I agree that things are changing, and we must evolve to remain relevant. At the same time, there has to be some protection for the original authors copyright.

I think there must be a difference between works "inspired by" and works "derivative of"..... I know I certainly have been inspired by much of the work here on this very website. Did I infringe on anyones copyright by taking an idea/technique and applying it to my own situation/style? I don't know.... maybe....

How about the guy I saw in the manufacturers midway at Mid-Ohio this year... selling handpainted artwork of racecars, drivers, etc... He was actually making a handpainted version of someone else's photograph. Right there in the midway: a photo on a posterboard for him to use as reference as he painted an EXACT copy by hand. Is that "inspired by" or a "derivitive of", and should the author of the original photo be compensated for that?

I think the digital age has created a grey-area that the authors of current copyright law never saw coming. It needs to be addressed as to what is and isn't a violation, and what is "fair-use".

I still consider myself fairly new to this game, and I am still trying to wrap my head around copyright/intellectual property/etc... rights and use and ownership, and what I can actually do with any images I take, and how a credential affects those rights, if at all. etc...

Interesting times we live in......

-chris

[Bob Chapman]

LOL! I typed out a response to JT's post in MS Word, copied it, pasted it here, clicked "Post Quick Reply" and was informed that my post exceeded the allowable limit for the site. :-)

If you care to read it...

Bob C.'s Way-Too-Long Rant (http://www.autosportimage.com/auto_photo_net/2007/Larry_Lessig.doc)

[Jim Sykes]

Oh my.

In that case, just because you can hold down a shutter doesn't either. :( I guess you're not creative?

C'mon, if you really believe that....I dont know what to say. Taking a bunch of video made by someone else and song written and recorded by someone else and cut and pasting them together is a bit different than someone creating a photograph. Sure, there is some skill involved, but its not creative in my eyes. Had they designed the artwork, drew the anime, recorded the song and then put it together, that would be their own creativity coming to mind. Finding a bunch of video of a president and putting it to someone else's music is just not in my eyes worthy of violating the copyrights of those that actually created the footage and music.

Creativity is a mental process. So are (or should be) laws. The slippery slope you describe will steepen via rigid old fashioned thinking. As a society, we need to adjust and think through problems. Just because "that's the way it's always been" doesn't mean we shouldn't explore ways to grow socially and as a culture.

I agree, but I dont think the answer is throwing out all the rules we've had in the past just to meet what people are doing illegally today. That doesnt make sense. Making the laws more lenient is not the answer as he is suggesting.

We have been on the planet 4 million years. We started as bacteria. We will be extinct in another 4 million years. So, in short, the story of human beings is half way through. From a germ to what we are today in 4 million years? I can't fathom the next 4 million... or the other half of the story.

Not sure how that fits in here, maybe its just late.

Copyright has it's place.. and while you site your position on BMI, you totally ignore the price fixing/gouging of 400% increases conducted by ASCAP. I realize that didn't fit your predetermined position... however, it completely negates the free market system.

I dont see it that way. How do you know that at that time, the prices they were charging was not worth it? How do you know that since broadcasting was so new that they started with one price and because of the amazing success of it and the growth that it was seeing, that the pricing wasnt consistent with the use of the product? Maybe the reach of broadcasting grew 1000 times during that same time frame. I dont know, but its something to consider and shouldnt be assumed it was straight price gouging.

And beyond that, I said his example wasnt good because it directly lead to what he is arguing against, the lack of creativity. By BMI coming in and lowering the pricing,they also lowered quality and you ended up with less creative stuff being played instead of more, as he was suggesting.

Yep.... people are lowering your prices. So what? People have been lowering prices for as long as there have been prices. It's competition. Copyright laws are not their to shore up your position in the market place. You should succeed based on the quality of your work and services you provide. It is NOT about your creativity. And creativity should be encouraged.

I never said someone shouldnt be allowed to charge what they want. I said that it was lowering the standards. I never said it was up to copyright to protect me, as a matter of fact I dont see where that relates to copyright at all, again, it was a comparison relating to his BMI argument. He is saying tha creativity has been stifled and that we should consider these things to get creativity back up, all I'm saying is that his examples are part of the direct result of declining creativity and quality of work. Its just a bad example for his argument.

Should I be allowed to steal your work to promote my business? No.

But it does sound like the suggestion that people should have more freedom to use my work, business or not. Also where does the business and non-business line end? Does a photographer using music to make a slideshow that they promote all over the internet, but not on their own site, count as business or not? Its obviously promoting themselves and getting their name out even if its not on a business site, where is the line drawn?

What if that kid making a video on Youtube is doing it to get his name out cause he is going into business? Does that count as promoting a business (to be) or not? Again, the line becomes too grey.

There has to be firm lines and what I hear in his suggestions will cause way too much blurring of those lines and create that slippery slope I suggest.

There was the same argument made when VCRs arrived on the scene. And cassettes.. these were all going to kill the artistic community. It didn't happen.

How do you equate that to someone using your photos, or someones video or someones music to create their own stuff and posting it all over the internet?

What did happen is artists struggle because record companies and movie producers (with zero creativity) manipulated distribution shares from actors and artists. The "true" creatives don't really share fairly in the revenues.

A whole other issue. Since the artists are already getting screwed by the record companies, should we make it even easier for people all over the internet screw them even further?

While you make a fair argument about the real estate/flight plan analogy. You completely miss the point. YES... if overhead planes are causing DAMAGE to me, I have a right to go after some sort of change. However, the true comparison to SOME copyright enforcement is the equivalent of my demanding compensation because Northwest Airlines is flying in my airspace and I OWN the rights to the airspace directly above my property. ITS THE LAW. The same if I have lake frontage... I own a pie shape section from the waters edge to center of lake.

But... as REASONABLE members of society, we find a way to make it work.

I broke the law last week. My five year-old plays basketball. I shoot the games for me and members of my family to enjoy watching him grow. I'm not in the kids sports photography business, nor do I want to be. As a "treat" to the other families, I've shared the photos. And just last week, I created a slide show of the kids, put it to music and gave each family a copy. I BROKE THE LAW. Right?

The thing is, such rigid application of the law doesn't make the laws better. It creates dissent and disgust for all the laws.

I agree with most of that. I dont think that being completely and anally restrictive has its place all the time either. I agree, some common sense needs to come into play.

HOWEVER, I dont think it should be left up to the laws to make that distinction. I think it should be up to the copyright holder to make those common sense decisions or the courts need to make it on a case by case basis. It should be up to you or me to allow a kid to use a photo for a school project,or whatever. I think that the rights of the creator need to be respected and then its up to them to decide if they want to allow use or not. Hopefully they can use the common sense and allow the uses that dont really hurt them. However, as Todd says, I want to be in control of that.

So in your b-ball slideshow for Marlon, sure I dont think ultimately there is anything wrong with the final use. However, I dont think it should be up to us to make that decision, it should be up to the artist.

Maybe that is the change that needs to take place. Rather than easing up on the laws and "evolving" that way, maybe the artists need to evolve in their thinking. I'd like to see artists who could put copyrights on their work on the internet and state its ok for x, y and z uses, but that is it. I dont know how to bring that about, but again, if someone wants to hold onto their copyrights as tightly as can be, then it should be their decision to do so.

No one is saying throw out the copyright laws. Just that it is time to review them with a certain modicum of COMMON SENSE.

See above. I dont think that is where the evolution needs to start.

[Jim Sykes]

And if you can't compete against lower prices... if you can't provide your customers with reasons to use your work as opposed to cheaper work, you don't deserve to survive. If the ZUNE came about and was as thin as a business card and held 40gb at half the price of an iPod, they'd sweep the market place. You're saying they shouldn't be allowed to do that? If I find away to provide my images to a wider audience, faster, cheaper and yet still maintain my profit structure, you're saying I shouldn't be allowed to do that? Should CNN stop accepting their iReporter footage and photos? What about the new generation of print on demand book publishers? Perhaps you shouldn't be allowed to print your own book for $40. Go to a publisher and buy 10,000 just like Ansel Adams had to do. And while we're at it... quit printing photos on your Epson. Get your ass in the darkroom or down to the photo lab and pay through the nose like film shooters had to do. And, we should roll back those one-hour guys while we're at it. That's not fair. Just because they can automate the process.

None of that has anything to do with copyrights. I addressed much of it above as to the reasons I brought it up, but its not really directly associated with copyrights. If someone wants to give CNN their video, that is their prerogative. If you want to give away your copyrights and distribute stuff on the net, that is your choice, but it is YOUR choice, shouldnt be made by the law being eased. Books have nothing to do with copyrights because I'm controlling how my images are used. Again, my points for bringing up those things are above and have nothing to do with copyright laws.

But along those lines of copyright uses, should I be allowed to take your images and create my own book on blurb solely for my own personal use? What would that do to your book sales if everyone that would have bought one could just legally use your images to make their own? Its not for profit, its not for their business, its just for their own personal use. Should that be allowed? It seems that is the kind of things that are being suggested here. Is that fair use? Furthermore, what if I put that blurb book up for sale at no profit to me? Again, its not for profit, its just me distributing YOUR photos using MY creativity by creating a book. What is the difference between that and making a Youtube video using someone elses video and someone elses music and using my creativity to put them together and distribute them?

Beyond that, what if I took all your images and then used my own creativity to put it to music and make a slide show than put it on the internet with my name on it?

Again, its not to promote my business, I'm just a regular guy, but I have put your photos all over the internet without your permission? Is that ok?

What is the difference between that and taking video and someone else's music and putting it on the net in my own creative way?

The world is changing and as business people and as CREATIVE people, we better be prepared to compete. If you're relying on our government to protect you, you're in for a rude awakening.

Again, I'm not counting on the govt to keep me in business. However, if the decide that copyrights arent that important and are going to start to legally allow a lot more free uses, it will certainly be harder to stay in business.

The questions I ask above in regards to books and such are very valid with what he is suggesting and I dont see where there is a clear line between what I bring up and what he suggests is ok. Where is the line and where does the slippery slope end?

Sorry, had to do two posts cause the forum wouldnt allow the length of the post with the quotes.

[Todd Corzett]

If you care to read it...
Very good read!

-Todd...

[Bill Jurasz]

Ditto Bob, very good read. Especially good was your explanation of the ASCAP/BMI thing, as well as the airspace and the chicken. However, Todd is right, there is going to have to be a compromise in the middle somewhere. Those who don't want anything to change make the argument that because it was done in the past it should always be that way, and there is simply no rational justification for that. Change happens. But those who want to throw out all the rules are just as irrational. Like it or not, the world changes, and the laws will need to adapt to the changes.

[John Thawley]

Change happens. But those who want to throw out all the rules are just as irrational. Like it or not, the world changes, and the laws will need to adapt to the changes.

No one is suggesting to throw out all the rules.

I don't want to get into gun laws, but while I agree with the "right to bear arms," I think it's not unreasonable to recognize when that "right" was established, the common firearm was a musket... not an assault rifle. Nor do I think they ever considered a lonely teen packing one to head down to the local mall.

I think the key work here is EXTREME. Prince getting pissed off because some woman put up a video of her baby dancing to Prince on a RADIO in the BACKGROUND is (to my mind) a perfect example. He's made himself look like an ass.

And on the flip side of all of this, there are companies paying to have their products positioned in movies or other forms of media. So... don't show our Harely Davidson logo in your motorcycle calendar.... but we'll pay to have Harleys in the next Quinton Tarrintino epic.

Consider, "Don't Stop Believing" by Journey. Dead for almost 10 years. Soprano's plays the song at the end of their run... BAM... Journey's got a hit single ALL OVER again. It's been on iTunes top 100 ever since the series ended.

That said.... Jimmy is right. Choice. I have the right to choose how my images are used.... and what compensation I derive. My feelings though are that we're all a little too wrapped up in it and lose sight of the big picture... ie; being seen, being heard... expanding the audience for our work.

I just think we need SOME common sense.

JT

[Bob Chapman]

...However, Todd is right, there is going to have to be a compromise in the middle somewhere...

I keep seeing the "need for compromise" in these posts alongside assertions that it must remain "the creative's choice". If it, indeed, must remain the creative's choice, then where is the compromise?

Here's what this all reminds me of: Eminent Domain. Back to property ownership...The 5th Amendment to the Constitution includes the text "...nor shall private property be taken for public use, without just compensation." As it pertains to land ownership, acceptable public use has included such things as the building of public roads and public schools. Thus, if your house sits in the path of a proposed highway, the government can force you to sell it for just compensation. Fine.

However, recently, the term "public use" has been dumbed down by SCOTUS to include "public good". In Kelo vs. City of New London, the court agreed that land owners could be forced to sell their property to other private entities who intended to develop the land for commercial purposes. The identified "public use" (errr... “public GOOD”) was economic development. The court found in favor of the city. In short, if five people own a continuous tract of beachfront property with small houses on it and a private developer proposes to develop a high-rise condo/hotel that would increase the tax base for the locality by $20,000,000, that “public good” could be considered "public use". It’s one of the most infuriating (to me, anyway) SCOTUS decisions in recent history.

So, we have a court that already disrespects the concept of private property (Renquist and O’Connor have since gone, but they were dissenters in the opinion anyway and replaced by Roberts and Alito who would be presumed to similarly dissent). And now I’m sitting here wondering, “Where the hell is the compromise when it comes to such matters?!” If I give an inch, my ownership rights are placed on a slippery slope and will soon be gone. At least with Kelo, “just compensation” is required. Lessig wants government to force us to allow usage of our property FOR FREE!

[John Thawley]

A little more "fuel."

http://www.news.com/Tis-the-season-for-common-sense-copyright/2010-1028_3-6222584.html?part=rss&tag=2547-1_3-0-20&subj=news