More on Intellectual Property

I believe that intellectual property is a fiction and that the legal obligation to pay royalties is a bad thing.

My view is based to three things. First, I believe that compensation should come from work. Payment for work that is done on spec, as in the case of a photo library, is not mandatory. I do not believe that Paul McCartney should be sitting on his ass and getting money for something he did in an afternoon forty years ago.

Payment for work that is done on spec, as in the case of a photo library, is not (and should not be) mandatory.  I believe that asserting that the law should force people to pay for this category of 'spec work' is a bad idea because intellectual property is a nouvelle fabrication to enrich a certain category of workers.

However, I'm ok with helping workers if it won't make the world worse and, in the case of royalties (and most other forms of intellectual property) it does. I believe that the motivation of being able to get rich off of royalties has encouraged a gigantic amount of awful 'art'. Our culture would be infinitely better off if only people so crazed and determined that they would do it without royalties were producing our cultural products.

(Since Napster, there has been a huge flourishing in the world of music. There are now a billion bands. The variety is amazing and there is a ton of awesome stuff out there. I can't bear to think about the hideous conformity and superficiality of music before.)

I believe that the traditional word 'property' is stretched to the point of insanity to get to the 'intellectual' kind.Property is something that can be taken away. When I publish your picture, you still have it, ergo, not property. Stealing is when I deprive you of something. I possess it. You don't. Not true with a photo.

The so-called value of the pictures in question comes entirely from the people who look at an enjoy a picture or other work of art. It is bizarre to realize, but true. If no one had ever listened to a Beatles hit, nobody would think it was important in any way if you played it to a friend today. I do not believe that the artist is entitled to that money in any way.

(I do think it's a good idea to give him or her money though and often do for artists that I want to keep producing, an inducement, if you will. That's how I like to spend my culture money.)

Which is to say, as a legal/political philosophy issue, I do not think that royalties (etc) are 'legitimate'. I believe that royalties induce bad art and a bad culture. I don't think there's any justice in the claim that the value in a cultural artifact derives from the artist. I believe it derives from the audience.

But there's more!!

Just about every aspect of the modern intellectual property regime stifles progress. Software is the most egregious example. Since this intellectual property era, there are tales of many startups either not getting off the ground or being killed by intellectual property lawsuits. It's true also of every other medium.

Every artistic representation is a consequence of one's experience. These days, a person has to not only be creative but able to do so in a way that doesn't too closely refer to the artistic context of his or her life. That, imho, represents a huge, unfair reduction in the ability of people to do art. Many people that can't hit that high bar could be doing lots of entertaining and interesting things if they didn't have to worry about being sued for using too much of the things that are around us.

Remember, it is illegal to play your favorite song at your wedding unless you pay royalties. And no, there's not some sort of "it's just one song" exception. If it's in a public place, you owe. Even though the song has no value beyond the fact that they played it at an important moment in your life. If you hadn't done that important moment, it would be completely uninteresting and without value.

ps, Your furniture guy comparison falls apart because the person is taking the guy's property away from him. After that, the bad guys will have it and the good guy will not. Real property is a real thing and we had to develop rules to deal with reality. Intellectual property is, even if one really supports the idea, a fabrication. It has to serve a goal to exist. I believe it doesn't.

4 responses
Wow, as a photographer I cannot believe how wrong you are on so many levels. First, you appear to put photographers in the same class as intellectual property trolls. But apparently you have not a clue about the difference between the iP trolls and the people that actually create the IP. Most tech IP patents trolls are law firms... not the creator of the patents. Second, the product of photography IS the image. it is not an element of something bigger, it's just the image. Photographs are made, not taken. While you may seem to think that we "sit on our asses collecting money" the reality is that assholes like you appear to have the belief that the product of our years education, 10s of thousands of dollars of equipment, risk to our bodies, and thousands spent getting to locations has no value. I view it a bit differently. I'm guessing that you typically just walk into a book store a take the books you want off the shelf without bothering to pay for them. If I build a car, and you want it, it should just be given to you, right? The product of my work is real. Just like a car, a piece of furniture, a book. When my work is misappropriated you are stealing my time and my money. This shit doesn't just happen. It's people like you destroying the art of photography by attempting to turn it into a worthless commodity. I have only 3 words for and those that think that the result of our expense has no value and that it should be yours for the taking ... Go fuck yourself.
What Bruce said. Bravo Bruce. I have spent years and continue to spend on education, equipment, travel and countless hours in post production. Every image I create is just that, a creation. Once I create it's IP. Not too difficult to understand.
So, Erika, your response to my piece is to join in an the fabulously meaningful and articulate, "Go fuck yourself"? When I saw Bruce's comment, I told my wife that he had said the usual things and that they were all assertions about the amount of work he puts in and the rolls on to the usual "I'd just walk into a book store..." kinds of comparison. That just ignores what I said. I would not take anything away from the bookstore. Were I to do that, I would deprive the owner of his book. As we have known for literal centuries, that is stealing. Just in case either of you is interested in understanding, I want to highlight the reason that, contrary to Erika's assertion, IP is "difficult to understand." You know that our system of money is based on an agreement that we will treat green pieces of paper as meaningful. It's a fiction, the papers are just papers, but, because we all agree, it works. It's the same with ownership of property. For a long time, there was no controversy. Powerful people got to take whatever they wanted. Even the peasants whose stuff was taken accepted the 'right' that was intrinsic to power. Didn't like it, but didn't dispute it. As time came along, we found it valuable to separate the right to own property from power. It made some good things happen when the general run of the humans could gather stuff without fear that it would be arbitrarily taken by the next tough guy that came along. The whole premise of property and property law rests on who gets to take what away from whom. Everything about property is about depriving people of the use of their property. Until now, nobody ever suggested that, for example, picking up a mango off the table and smelling its delicious aroma was theft as long as you gave it back. Yes, you got the pleasure of smelling it without paying but, you gave it back and so the owner still had use of it. To stretch the metaphor, if you made a gorgeous painting and put it on the outside of your house, no one would think someone a thief because he or she stood on the sidewalk and enjoyed it. Yes, we'd all agree that the person on the sidewalk got the benefit of the painting without paying but, the artist was not deprived of the property. Ergo, no stealing. (I also like note here that I fully respect art, the creative process, and want you to make a living. It's just that the royalty idea is not the way.) Making good pictures is a lot of work. I believe that completely. I assume that, since you are talking about making money, you occasionally do work that is commissioned by someone. Commonly, photographers charge by the hour for weddings or portrait sessions with a surcharge for the time spent in post-production. Or, you may do some catalog or magazine work. That also is usually an hourly activity. You are doing work and getting paid. This is what I like. Sometimes, you get an idea for a series, perhaps, and go crazy putting together a session. Props, models, whatever it is that you do. And you make some beautiful pictures. Why do you do this? I guess that you consider yourself an artist. In that case, you do it to satisfy your passion for beauty, for the image, to make the world more beautiful or to capture an evanescent moment forever in a picture. Or, perhaps, you are motivated by money. Your thought process runs more like, "people are really into pictures of cats these days," and you go about trying to cash in on the craze. In either case, you're doing something that, in a phrase I'm sure you know, on spec. I know I've done it. Written a piece of software (I have skin in this game) that I thought was a good idea that nobody commissioned. So, we come to the push vs the shove. You've done this. You've put the picture on the side of your house. People stand on the sidewalk and enjoy it. But now, someone takes a picture of your picture. That person thinks little of it. After all, you still see the picture every day and enjoy its beauty. You, not satisfied with your role as artiste in example one, also want to be example two, cashing in on a craze. In this case, a craze, perhaps, of one. So, pretend you are in an especially illiterate place and you go to the cop and tell him that you've been robbed. And here, Erika, is where you are wrong when you assert that it's "not that difficult". This ignorant cop, reacting to your sincerity, rushes to your house to look for clues to the crime and sees the painting still on the wall. He is puzzled. You explain that the person took a picture and is now going to be looking at that picture without being on the sidewalk outside your house. The cop is puzzled. You say that the person could show it to people. Finally, you say that it took a lot of work to make the painting and that person should pay. When the cop asks why, you, or at least, Bruce, has no answer except to note that he has bought equipment (to which the cop reminds us that Bruce loves that stuff and brags about it at parties because he takes great pleasure in it). He says that he goes on location all the time (and the cop is confused because he thought that Bruce loved going on those shoots). He says that he spends hours retouching (and the cop shakes his head because he and his wife have been perplexed for years why Bruce won't help the village with its roads, food supply, barn-raising projects). So, you explain that you need to buy food and that you want this person to pay you for all this equipment, time and effort. The cop, used to being paid by the hour for running around and keeping the peace, cannot understand. Recently, he told some people in a bar to calm down in a very firm way and, when he asked his boss for overtime to cover his bar expenses, the boss was not receptive. So, you explain that you think the person should pay you for using the copy of the art that he captured on the sidewalk. The cop asks how much? You say, it depends on the use he puts it to, say, ten percent of the revenue he gets from using the image. The cop knows the guy and realizes that he's going to spend a ten years hand-sewing a tapestry of that image. It's a commission and the patron is going to support him for all of those ten years. You say, Right!, you want one year's wage for that. After you reveal that it took you one solid, hard day (two, three, ten?) to create the image, the cop is a little perplexed. He wonders why you should get a years wage for one days work but the other guy has to work ten years for nine years pay. But he's going to make a huge amount of money!! You cry, outraged. That's a huge amount of money. To which the cop replies, But he went out and found a commission and is going to spend the next ten years doing it. You just put a picture on the wall. He's going to do all the work - except for one day. Why shouldn't he get the money? But, the cop goes off to investigate. He asks people about this and finds that nobody except photographers think it is stealing. Everyone in the entire land thinks that copying that picture is just fine. As long as I don't delete it from your hard drive, I didn't take it from you. There is, in fact, no social consensus that using someone else's intellectual property is theft. In fact, *everyone* says they do it all the time and think it's fine. So, he comes back to you to tell you that he can't do anything about it. Not only don't the citizens think it's a crime but he can't bust everyone. You're pissed now. After your friend tells him to "go fuck" himself, your join in and tell him that it's a simple proposition. I did the work of creating this art and I should get paid. To which he replies, I agree!, get a job, sell a project, figure out some way to entice people to want the pictures you don't put on the wall. He says, there are a million business models out there. People are inventing them every day. If one of the basics doesn't work for you (and who really does want to have a job or sell projects), then figure out a new way. You explain that you *have* figured out a new way. That way is that you put stuff out in public and, when someone likes it, you want the cops to go collect money from them. Obviously, the cop doesn't like that very much. He thinks, I'm going to be doing a whole lot of extra work while she sits in her studio doing what she likes to do. All of which is to say, it's not simple. It really is difficult. The intellectual property types, from you all the way up to Disney, are forcing a new concept of property on society that turns everyone into criminals. I think it's a mistake on many levels but, the point today is that it's not as simple as "I made it. QED, it's stealing if you use it."
I've recently had another revelation about the negative consequences of the current intellectual property regime. Royalties encourage people to spend time doing things in the (usually unwarranted) hope that something will pay off big some day. It is common to see young people fantasize about, and spend almost all the productive years of their youth trying to become a professional sports player. They do it because they see that Michael Jordon is fabulously wealthy and they want that. The fact that one zillionth of one percent of the players get rich, or even make a living, doesn't matter. As if winning that lottery was certain, they spend their time on games instead of calculus. It's the same with intellectual property. There are programmers, musicians, photographers, writers, etc, every kind of talent spending time working on the great American novel, or the next top of the charts pop song. Many of these people would not do it if they were not dreaming of royalties. They would, sensibly, think they were wasting their time on the hobby instead of getting a real career. The fact that the reality of the situation for almost all of them is that they will never make a living out of their hobby doesn't matter. They are caught up in the fantastical lottery mentality encouraged by today's intellectual property regime. Think of all the lives that would be spent with more prosperity if the idea of royalties was removed from their minds. If they had no thought that spending my life in the hope of royalties would vindicate a life of fun. Which is to say, another reason that intellectual property is bad is that it ruins lives.