What do you do when you can’t decide between two pictures? Well, of course I use both. See “slightly below” for #2

Today winter was back again, but at the same time it was a wonderfully sunny morning. I rose early, left home shortly after 7 am, and when I went down Lerchenfelder Straße, I was walking directly into gleaming sunlight. As you can see, both images were taken in roughly the same place. Originally I wanted to take an image of the sun together with its many reflections, but when the woman passed by and the traffic lined up nicely, I made one more image, and that ended up as the Image of the Day.

As for the rest of this post, I’d like to clarify what I said in the last post regarding the need for “a system where you waive your rights by refusing to publish“. Flo reacted with a comment that made me realize how unspecific my rant had been, thus let me start by quoting her comment:

If you were a songwriter or composer of music, you’d feel just as proprietary about your hard work as photographers do about their images! It doesn’t matter whether an image has been printed, or if it exists as a film negative that has never been printed, or as a bunch of pixels/photons on a hard drive, that image represents a photographer’s hard work – and is given the same copyright protection as other property, such as paintings and sculptures, whether it ever is published or not. So I don’t understand why music should be any different.

All of us have seen paintings, sculptures, photo images, and other art work that we’d just love to be able to own – but we can’t just go and take them for our own use. But you want songwriters and composers to be willing to fork over their hard work to you for nothing, if they choose not to publish their work! I’m just not sure I understand what you mean by “publish or give it up.” You give something up only after you die, as you certainly can’t take it with you!

Should I give up all my images because I choose not to “publish” them, which means putting them on the internet or printing and hanging them in a gallery?

OK, I see, I should have been precise or shut up entirely I didn’t, so let me now try to do the second best thing, to try to explain what I really mean.

Oh, and one more thing before I begin: I am no lawyer, and even if I were, much brighter minds than mine have tried to solve those problems, so don’t expect me to succeed. Still, I’ll try to indicate a general direction.

There is no such thing as a “Natural Law”. Laws are agreements between influential forces in a society. In a democratic society, the agreeing parties can be thought of as rather broadly defined, ideally encompassing the society as a whole. In a totalitarian régime the participating forces represent only a small group, those who are in power, normally the ruling party and a group of wealthy supporters. I won’t speak of totalitarian systems here. I see totalitarian tendencies in our society, but I firmly believe that we still have a democratic consensus in what we frequently refer to as the “Western World”.

Modern democracy is firmly rooted in the philosophic system that developed in Europe’s Age of Enlightenment. One of the fundamental ideas of democracy is, that laws should be for the general good, not for the benefit of a certain group.

Just as there is no “Natural Law”, there is no “Natural Right” to enjoy unrestricted private property either. It’s all a matter of agreements. History saw systems that were vastly different from our current one, and even in the last 30 years we have seen many countries in Europe change from being oriented towards social welfare, to a system that more and more resembles that of the United States. There are many reasons for that. One is the complete failure and the demise of communism, another is the strong political influence of the US as the only remaining superpower. None of the political tendencies we see today is “just given”, nothing is an “only natural way”, everything is just as it currently is, and when anything of it turns out to work badly, to be inhuman, to be detrimental to the greater good of the society as a whole, there is nothing more natural than to think about changes.

Our system of “Intelectual Properties” is just that, a consensus, an agreement, and it has evolved a long time ago, well before the advent of computers, of digitalization, of the Internet, well before we learned to copy information in a completely lossless way. Flo writes about this matter in a very personal way, addressing it from the perspective of the creative artist. The problem is, that the current system does not exactly protect the interest of the artist, it protects the interest of the publisher.

Much of what is published, is not owned by its original creator. Contracts in the recording industry are normally much in favor of the corporations, not of the artists. Sure, some few artists get real rich, but this is not the rule. The rule is, that the recording industry takes most of the money, and normally they exercise their rights long after the artist has died. Ella Fitzgerald is long dead, but there is still a lot of money to be made with her work. Look at Billie Holiday: did she die incredibly rich? What did Vincent Van Gogh get from the billions of dollars that have since been paid for his paintings?

Again, I am not strictly against intellectual property, but I am strictly against the current trend to see it as god-given. The concept of “Intellectual Property” grants to the artist, the inventor, and to the one, who bought the work of art or the patent, a temporary monopoly. This is believed to foster creativity and to be in the best interest of an advancing culture. But still, this is meant to be a compromise. We make it easy for artists or inventors to profit from their work, and we do it in exchange for their increased output. It’s a deal. Society grants some privileges in order to get something back.

Unfortunately there is a tendency of capitalism to favor the concentration of wealth, and with concentrated wealth comes increased political influence, which again tends to even increase this tendency, and so on. As a consequence, it is hardly important to concentrate on the protection of the rich, they can perfectly care for themselves (and they certainly do), no, the primary focus must be on protecting those who can not pay for their political influence, those who can not pay for laws in their favor.

In that light, let me clarify what I meant with “publish or give it up”.

First: If I create any kind of work and don’t publish it, it is entirely my decision. No one is or should be able to force me. For the general public, it is just the same as if I had never created it at all.

Second: If I have published my own work and want to stop its circulation, I am free to do so. I don’t waive any rights. I probably won’t be able to completely undo the effect of the prior publication though. People may have seen or heard it, they may have quoted it, and it would be unreasonable to expect the world to help me undo my work. After all, from the moment of publication, my work begins to influence others, begins to become part of our shared experience, part of our cultural heritage. Creation is communication. Once the word is out, it can’t be unsaid, the book can’t be made unread, the song can’t be made unsung. But still, if I believe it was an unworthy piece, I am free to try to unmake it as good as I can.

If you think of it, no harm to society is done by these premises. We can assume that artists in general want to publish their work. There may be exceptions, but there is no real need to force anybody. Artists give gladly and freely, to compensate them is in the best interest of any society.

This is not necessarily the case with derived rights, for example those of publishers or those of organizations that mainly trade intellectual property rights. Just look at the patent system: There are companies, so-called “patent trolls”, that do nothing but buying trivial, broadly formulated patents, and then look for someone who actually invents their “invention”, or at least something that is similar enough to take the case to court. They are a special kind of non-practicing entities. They have never ever invented anything. Those companies are nothing but a bunch of lawyers, their only purpose is to sue those who actually do the research. Normally their patents are not even strong enough to win an actual case. No, they get their money because real companies try to avoid litigation. Litigation can damage an actual product, can delay its introduction, can make for bad press, and so the parasites “earn” their money. It would obviously be in the best interest of our society to redefine the patent system, in order to make such parasitic behavior impossible.

Squatting on a work of art for financial reasons is a similar thing. It’s certainly not in the interest of the artist. Artists want to see their work published. The idea is not, as Flo has insinuated, for me to want something for free, is not to leave the artist uncompensated, not at all, the idea is to prevent publishers from hoarding music or other works of art.

Now, as we talk about other works of art, let’s think about paintings and sculptures. Are they the same? Would I want to see them exhibited, by force if need be? Mind please, I say exhibited, not published! There’s a difference: A painting cannot be published, it can only be exhibited. Why? Because it is unique. It’s not that it can’t possibly be reproduced in an almost perfect way, at least so well that practically nobody could see a difference, no, I don’t rule that out, but reproduction is not the usual way to enjoy a painting or a sculpture. We expect it to be unique and we enjoy that uniqueness. Copying simply makes no sense in that context.

A book or a music record is different. We don’t mind getting a copy. Normally nobody even gets to see any manuscripts. What we expect are industrially manudfactured copies.

Thus I’ll rephrase my request:

Any work of art that (a) is of a kind that is normally reproduced, and that (b) is not in the possession of its creator, and that (c) has already been published once for a minimum duration of, say, a month, and (d) has been published commercially, has to be held in publication perpetually, in order to retain its proprietor’s copyright.

Additionally I’d require a reasonable price. Publishing the works of Frank Sinatra as digital downloads at Amazon.com, that’s perfectly OK. A price of below $1 per song or around $10 per album, that’s OK, twice as much would probably be already frivolous.

Something around that. A customary price in that market, and to be precise, a customary price for new music, thus already a little high for remastered songs from the 1950s. The market may not buy at that price. I, for instance, have bought the digital downloads for a Frank Sinatra collection called “Concepts”, originally released in 1992 as a boxed set of 16 CDs, currently available in the Amazon marketplace, used from $175.98, new at $899.99. That’s frivolous.

The current price for digital downloads is $185.76. Still a tad high, but then, maybe not. It’s the customary price, a little below $1 per song. After all, there are 248 songs in this collection. I was particularly lucky though, because – for whatever reason – Amazon sold it for $5 in the US and for 5.98€ in Europe. Cool, huh? What a bargain!

It was completely by chance that I saw it. Would I have bought at the current, customary price? Hell, no. I already had some Sinatra collections, many of those songs are probably duplicates, but then, at that bargain price I did not care.

Thus, the normal price for new songs may be a little high for Sinatra songs, the average music buyer may find it too high, but even at this price, the music is available for everybody who is interested. Setting the price for the digital downloads at $1000 would be much too high. It would be so high, that practically nothing would be sold at all. The price would have been set as a means to induce artificial scarcity, making the price an equivalence to not selling at all. That’s what I want to avoid, and for that reason I would make this pricing illegal.

As a govenment, I would not force prices on you as a publisher of art, but I would have a law against artificial scarcity. Thus you would lose a lawsuit aganst you.

And if you refuse to sell? Well, that’s the “give it up” part of my original rant. Our legal system grants copyright holders a monopoly, and it does that, because we believe, that it is in the interest of our society. That monopoly could be revoked. Why not? You act egoistically, why should scoiety protect you? You could still keep it from being published, but the law would allow unrestricted copying of such works. Essentially you as the formerly exclusive publisher would have given up copyright.

That’s not at all unreasonable, not anti-capitalist, not against private property. Monopolies are a danger to free markets, and they have been fought even in the US. Think of IBM and AT&T.

Speaking of music, here the problem is the availability of a semi-public good. We as a society grant some publishers the exclusive rights to take money for what other people, long dead, have produced. There is no reason why we must do that. Copyright could end with the death of the holder. It could end ten years after the work has been created and even for the artist. Why not? Ten years should be sufficient time to monetize a good song.

Or there could be no copyright at all. Copyright is an invention of the 19^th century. The world has endured thousands of years before the invention of copyright, and we can’t say that it did not develop quite well, can we? The absence of copyright protection did not mean that there was no incentive to produce art either. So what?

But then again, that’s not what I would do. I would just prevent copyright holders, that are not the original artists, from taking works, that have already been published commercially, off the market, either by not selling at all, or by creating artificial scarcity via outrageous prices. Finally, I would do this only for works of a category, that is applicable to selling as digital downloads. This certainly encompasses music and movies.

Note that I have phrased it “published commercially”. Actually this is because I want to take most photography out of the equation. Not necessarily my own. I sell images via Imagekind and the Fine Art Photoblog. Theoretically at least

There are uses where photography is sold to a publisher and then given away as part of a product, for instance press photography. Digital downloads are not a customary distribution method for these kinds of photography, thus I would not want to force digital distribution upon it.

There may be many similar examples, there may be holes in my “legal” construction, but in general it would reach its goal, the availability of our cultural heritage, and it would do so without undue restrictions to current proprietors.

The Song of the Day is “Once I Walked In The Sun” from the 2002 Jane Monheit album “In The Sun”. Hear it on YouTube.