Don’t Be a Copyright Hypocrite


There are two types of creatives in this world: those who have had their works infringed, and those who will. But just because “the kids” think it’s OK to steal your music, video or photography, that doesn’t make it so. And the worst thing you can do as a photographer is to be a hypocrite and infringe on the works on other creatives (because everybody else is doing it) while whining about your own situation.

“The Kids” Are Wrong

A while back, I watched a presentation by a noted photographer, whose work was enhanced by the music of Enya. I know it’s next to impossible to get permission for uses like this, so it was pretty clear that he was infringing on the artist’s copyright.

I continue to watch as other photographers promote videos/presentations with music that is almost certain to be an infringement. They upload these on YouTube just like “the kids,” without realizing they are undermining all of us by doing so.

Here’s another example. Do you have friends who “share” a Photoshop or PhotoMechanic serial number, yet complain when their own work is stolen? I bet you do.

Were I to provide a photograph that was not my own to an organization for their presentation, or to a Web site or blog to grow traffic, the infringing party would be the organization or Web site or blog. It is the “publication” of the material that is the infringement. For a public performance, it would be the corporation or organization that provided the forum/programming that would likely be held accountable.

Years ago, I was working a product launch for a pharmaceutical company; the audience was comprised of sales reps who visit doctors’ offices to give out samples and promote the product. The event began with the Red Hot Chili Peppers’ “Give It Away Now,” which made sense — except for the fact that the company did not have the right to use the song. This is pretty hypocritical for a company that works to maintain the patents on its drugs for as long as possible.

Fair Use vs. Stealing

When it comes to music, unless you’re critiquing the music itself — as in, “listen to the multiple downbeats”, or “the refrain here is repetitive” — what you’re doing is not fair use. It’s something else, called stealing.

One of the more unpleasant conversations I had recently was with a client for an assignment, who, after his subordinate signed my contract with a rights-managed rights package, called saying “I just want to make sure we own all the rights to these photos.” I had to explain that this wasn’t the case.

He was irritated and said, “We just have a fundamental difference about how to approach this.” And I said, “Well, mine is a perspective based upon copyright law and rights granted under the Constitution. Are you suggesting that if an artist produces a song and earns money off the CD, that they then shouldn’t be paid additionally when their music is used in a movie or a commercial?”

And he said, “Well, that’s different.” I said, “No, actually, it’s the same copyright principle.”

Remember that the next time you’re creating a multimedia presentation and want to keep up with what “the kids” are doing by adding a hit song to your work.

[tags]copyright, photography law[/tags]


7 Responses to “Don’t Be a Copyright Hypocrite”

  1. Hey John, I'm a product development intern with iCopyright. I like the approach you take on the issue. Copyright Infringement will never decrease unless the people take action. I don't mean to seem like one of those product spammers but I really think you should take a look at this new service for creators. It's called ©reators and it is designed to allow content creators to share their work while protecting their rights. It gives writers and photographers an interactive copyright tag and permissions management system.
    If you want more information you may be interested in reading an independent review by a respected blogger: http://www.plagiarismtoday.com/2008/05/30/icopyright-launches-creator-services/. If this seems of interest, sign up for a creator tag. The website explains everything in detail. The beta sign up is at http://Creators.iCopyright.com.

  2. A good piece and an important point. Nevertheless, you have conflated two distinct concepts and offenses:

    When it comes to music, unless you're critiquing the music itself... what you're doing is not fair use. It's... stealing.

    No, it's not stealing. It's infringement. You use these terms interchangeably in the piece, but they are not synonymous.

  3. Mike -

    You can split hairs all you want, and while there may be a technical difference between stealing and infringement, for the layperson, infringement is a "big word" that doesn't convey to them what has occurred. Even a lay person understands that it's wrong to "steal".

    John

  4. Copyright law is not brain surgery, but it is a field that requires slightly more esoteric concepts and analysis than "hey, that guy snatched my banana!" I don't see what you gain by calling this "hair-splitting" and implying that the average Joe is so thick that he can't comprehend big words.

    Infringement is simply not stealing. Stealing deprives the holder of the property stolen. It is universally condemned. Infringement harms the holder in a variety of more subtle ways that are not universally agreed. In fact, the existence of "fair use" underscores the sharp difference. If you take a physical object without permission, you've stolen it. Apart from certain extreme exceptions, you can't wriggle out by saying, "I was just gonna use it for this purpose, not that." In contrast, you can "take" copyrighted works to use for certain purposes that leave the holder with absolutely no remedy – no matter how violated and angry the fair use leaves him.

    Are there similarities between infringement and theft? Sure. Are there ways in which the harm caused by infringement can be equivalent to the harm caused by theft. Certainly. But insisting that average Joes can't grok "infringement" and have to be fed "theft" is like saying someone can't comprehend "sister," "aunt" and "wife," so we'll just call them all "Momma." That's no good for healthy relationships. ;-) In the same way, trying to equate infringement with theft is no good for a healthy society.
    Infringement is simply not stealing. Stealing deprives the holder of the property stolen. It is universally condemned. Infringement harms the holder in a variety of more subtle ways that are not universally agreed. In fact, the existence of "fair use" underscores the sharp difference. If you take an object without permission, you've stolen it. Apart from certain extreme exceptions, you can't wriggle out of having stolen it by saying, "Oh, yeah, well, I was just gonna use it for one purpose, not another." In contrast, you can "take" copyrighted works for a variety of purposes that leave the holder with absolutely no remedy.

    Insisting that Joe can't grok "infringement" and has to be fed "theft" is like saying someone can't comprehend "sister," "aunt" and "wife," so we'll call them all "Momma." That's no good for healthy relationships. ;-) Falsely equating infringement with theft is no good for a healthy society, either.

  5. Ugh. Sorry about the double post! Mike

  6. Nice article. I've found that I get more IP violations from other artists (especially musicians) than any other group. I even had one talented singer tell me that she was going to take her songs off her MySpace page so they wouldn't get taken and, in the same conversation, That one of my photos was the cover of her CD coming out the following week.
    I think it's because these creatives are in it for the art and don't think about the business aspects.

  7. An artist I know recently took issue with my use of the word "stealing" to describe the unauthorized copying and use of artwork. Many free culture advocates feel the same way and I respect their opinions. Personally though, I have no problem with calling it stealing. "Stealing" is a good, strong and simple word that tells us that one person has copied and used the artwork of another without permission and that harm has been done. Using softer words to describe it is one of the many ways that free culture advocates attempt to normalize the abolishing of all rights of authorship for creatives in the attempt to make all cultural products "free".

Leave a Reply