New technologies were likened to paintbrushes at websummit 2015; tools which the artist manipulates to create images and words. The creative process has been enhanced, perhaps transformed by the technologies now available. The use of these tools extends beyond the sphere of the professional artist or writer, anybody may participate, repurposing and manipulating the abundance of existing digital material as a springboard to launch new creations. However, the fluidity of participatory culture is hampered by problematic copyright law and an uncertainty around the understanding of fair use. Potential solutions would fill many pages, virtual and real. Within the scope of this blog I’d like to frame a couple of thoughts on the need for protection both for creators and for those who seek to repurpose the work.
The cold hand of copyright.
Copyright law is a complex and emotive issue, in A Companion to Digital Humanities, Kolker likens copyright and IPR to a ‘cold hand’, casting it as one of the greatest hindrances to using digital interventions in creative work. Jensen, in the same volume, compares copyright to cancer, arguing that its principles are currently “metastasising in ways unhealthy for our culture”. Both authors see excessive copyright in the digital world as dampening creative efforts, a point illustrated by the Communia Association diagram below.
And yet creatives must have protection around the ownership of their work, a response to these concerns comes in Laurence Lessig’s Creative Commons which offers many options for licensing and sharing of work – under the tagline “Keep the Internet Creative, Free and Open”. In the commercial sphere however, the system advocated does appear to be most useful merely as a traffic light system, a means of illustrating how a particular piece of work may be used. Licensing categories are depicted through descriptive icons, useful to demonstrate usage at a glance. However the system is unsatisfactory in terms of enforcing the advocated usage.
For example, Creative Commons advocates a crediting system as one tier of licensing, under this licence work is attributed to its original creator. From a purely commercial standpoint, there are advantages to this system, it may boost awareness of the artist’s name or brand, leading to a rise in profit, perhaps an increase in online followers which ultimately may lead to more work and commissions.
However, benefiting from attribution only makes commercial sense in some creative sectors, mainly those that are text-based. It is difficult to attribute an image to its creator in the advertising sector where this is not an established practice. Artists are generally only credited with image creation in sectors like children’s books, (and not always then as the Pictures Mean Business campaign demonstrates). Most importantly, the attribution may be inconvenient for works based on multiple other works.
Image appropriation and fair use
Image appropriation is a hot topic amongst creatives, as is determining what constitutes fair use. First to mind is the controversy surrounding Shepard Fairey’s use/manipulation of an Associated Press image depicting Obama. The photo formed the basis the Hope series of images created during the 2008 US presidential campaign.
Does repurposing existing media content, to create art constitute fair use? If not, then at what point does it become wrong to use it, is there a tipping point? A search on image appropriation on Creative Commons pulls up suggestions from Europeana to Sound Cloud. But in defining ‘adaptation’, Creative Commons reads ‘there is no international standard for originality, and the definition differs depending on the jurisdiction’, an unsatisfactory resolution to the question of fair use.
Mix it up
Fariey’s website outlines the process behind the creation of his Obama poster, he “grabbed a news photograph of the candidate off the Internet…… then simplified the lines and geometry, employing a red, white and blue patriotic palette…and use(d) a lot of red along with boldface words: PROGRESS or HOPE or CHANGE” In September 2012 he was sentenced to 300 hours of community service along with a fine for $25,000 in a copyright suit with AP, and yet the image now hangs in the US National Portrait Gallery.
Fairey emerges from a scene aptly described by Henry Jenkins in Convergence Culture “it should be no surprise that much of what the public creates models itself after, exists in dialogue with, reacts to or against and/or otherwise repurposes material drawn from commercial culture……the new convergence culture will be built on borrowings ” (pg 140)
Again, in his forthcoming book Participatory Culture in a Networked Era, Jenkins argues for a move beyond individualized personal expression towards “an ethos of ‘doing it together’ in addition to ‘doing it yourself.'” While I acknowledge that participatory culture does not give all members of society an opportunity to participate, I believe that the creativity it affords should be encouraged by providing a copyright system which encourages participation rather than threatens it. The Digital Millenium Copyright Act of 1998 has been written so that “no one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm” according to Lessing, again cited in Convergence Culture (pg 142)
One way of interpreting the AP/Fairey case is as Henry Jenkins’ Grassroots Convergence:
” The informal and sometimes unauthorised flow of media content …..for consumers to archive, annotate, appropriate, and recalculate”
Jenkins would perhaps cast Fairey as a grassroots intermediary, one who “actively shapes the flow of media content but who operates outside any corporate or governmental system”. Fairey takes what is out there and repurposes it in the spirit of DIY punk appropriation.
I’m most interested in what would have happened if Fairey had made, say, the smallest gesture towards owning usage rights, if he had paid AP the minimum licence for the smallest resolution of the image. (Info on AP licensing can be found here.) AP certainly needed to take a stand on Fairey case because of the high-profile and the potential to set precedence for claims of ‘fair use’ by subsequent users, an issue highlighted by The Huffington Post
Fairey has not been shut down by this particular cold hand. Like many artists who take inspiration from graffiti, Fairey continues to create unauthorized works, telling The Detroit Free Press in May: “I still do stuff on the street without permission”, prompting a gallery owner to comment that “He wears his warrants on his sleeve like badges of honor. He’s using the judicial system and the media to market himself. It’s a minor investment and in return his name stays relevant. He’s been doing this for years, and he’s great at it.”
Unauthorised appropriation and reuse took place throughout the twentieth century but under the Panopticon visibility afforded by the internet, we need a new clarity around copyright; today’s repurposers need a more robust system of protection from the control asserted over intellectual property.