Photographers, Don’t Listen to Harvard Professors — or Anyone Else — Who Asks You to Give Up Your Rights

People who want you to forfeit your intellectual property rights like to point out the enormous creativity of those who would use your work without compensating you.

They’re not stealing your work. They’re “remixing” it. “Transforming” it. “Mashing” it up.


Look, I can appreciate the talent that goes into a remix or mashup. The Slap-Chop remix was awesome, for example. But it was also an infringement.

You place your bets, you take your chances. DJ Steve Porter took a risk and it paid off for him.

But that doesn’t mean Porter’s remixes should have the legal status of a new creation or original work. That’s ridiculous.

View from the Ivory Tower

Unfortunately, that’s the point of view of some influential people, like Harvard law professor Lawrence Lessig.

From high atop his ivory tower, Lessig declares that the mashup artist should be able to remix scenes from a Disney movie, for example, and claim ownership of the finished product.

But how can you separate this derivative work from the original work and the tens of billions of dollars of marketing that has made Disney a household name for most of a century? You can’t.

If he’s allowed to succeed, Lessig’s mashup of intellectual property law will create a legal mess for all of us.

The Behemoths Weigh In

Fortunately, Disney, Sony Music, the news wire services and others aren’t buying Lessig’s argument — and as photographers, we’re lucky to have these corporate behemoths on our side.

Don’t get me wrong. I greatly dislike what the record labels have done to independent musicians. And in our profession, the contracts the wire services dictate to freelance photographers today are shameless. In particular, they have been reprehensible in their demands to own the intellectual property that we as photographers create.

But there’s an old saying that applies in this case: The enemy of my enemy is my friend.

The large corporations, with their deep pockets and strong desire to control intellectual property rights, will be the defenders of IP for all creators of original work in the legal battles ahead. And that means they’re on the same side as us — the independent photographers.

Lessons of Napster

We need only look a few years back, when the hooligans who ran Napster were, quite literally, running amok with the creative talents of musicians everywhere.

More than one professional photographer I know had streams of Napster-sourced music running in their studios and seemed to see nothing wrong with it — until I pointed out the hypocrisy.

Call me a killjoy, but stealing music is stealing from artists. Period.

Fortunately, iTunes created a system that encouraged music downloads while compensating artists, and Napster was lobotomized into a lifeless parody of itself.

Fast forward to 2011, when we have people being encouraged to steal photographs and video, and visual artists being encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations.

We’re told that anyone should be able to go to our website, take photographs, use them, “remix” them, and do so without our knowledge or permission.

I Stand Against IP Thieves

Lessig would have you believe that enforcing copyright law has become like the War on Drugs — unwinnable, and overshadowed by the collateral damage it has caused. In this case, the collateral damage is in the form of underground DJs and other criminalized remixers.

I have little pity for these mashup artists, at a time when the artists of original work have such a difficult time protecting it, receiving fair compensation and feeding their families.

And so I will gladly stand alongside the wire services, music and movie industries as they leverage their might to defeat those who would steal our work.

32 Responses to “Photographers, Don’t Listen to Harvard Professors — or Anyone Else — Who Asks You to Give Up Your Rights”

  1. I copyright all my work with the copyright office in DC. Anything I post on the internet has my copyright embedded in the image. If anyone decides to use my work in any way at all with out my written permission they should prepare for law suit hell, followed by a PR campaign to discredit them.

    There is nothing honorable about theft.

  2. John, just want to tell you:
    Count me in!

  3. Without the original creativity these 'mash up' guys would have nothing to work with... by taking for free/ stealing they are cutting their own throats...

  4. I remember when I was at college 20 years ago I fellow student had photographed a series of images from a music video and displayed them on a board. Many of the students thought it was great until I pointed out that all he was doing was copying the video, the lecturer then questioned his motives, he could not back his argument up and just got annoyed with everyone. Mashups have been going on for years it is just easier now.By all means create Mashups etc but the original artist should be credited and compensated should that piece of work become successful.

  5. Photographer LaChapelle sues Rihanna for using his images for her music video ($1 million!) without his permission. Is that a remix as well?

  6. Where is the line drawn, then? Is collage art IP theft? It's the same principle, using pieces of other people's finished work to create a new whole with a new meaning. And remixing/mashing-up isn't even close to illegal downloading of music. No one listens to a Girl Talk song when they want to hear the full song of anyone he uses in his mash-ups, it'd be pointless.

  7. How about the right of the photographed? I find very hipocritical to talk only about the art on the eye of the beholder, and assume that the individuals being photographed should just give up their rights, as it is custumary. I am a photographer as well, only I haven't found a convincing compensation to publish any of my work, nor I've taken the time to postproduce most of my projects. I am a digital-born photographer, and still think there's a way where we can reach a fair deal among users and creators, but I doubt it will come by criminalizing a new way of relating with each other in the web. Photography has changed for everyone. What if you'd had a camera when you were 8 years old. Would you be more experienced? Who knows, but more photographers will reach top quality levels. Rather than judging how evil the new ways and technologies are, how they are a threat to what we've experience until now, I believe there's an alternative. It's and open alternative directed to change the way we perceive the creations on the web, not only by forcing people to act in a certain way, but rather, generating an incentive directed to fulfill the creators, and to serve as well the users, who become part of the filter of the things that mean something to them on the web. It's called unocent. fair deal, you rule. What do you thing?

  8. Lady Gaga (I'm not even a fan but she is a massive force) sells out stadiums around the world. Millions of people want to see her performance art, and they pay for it because they value it.

    We are experiencing cultural climate change. I don't interpret Lessig telling people to steal music and make it their own; instead he's suggesting that there is a happy medium that has to be found if you are ever going to find happiness in valuing profitability over artistic expression, education and proliferation in 2011--a time when we have tech companies shoving the newest, hottest, and most powerful gadgets into our hands that make remixing easier, for those savvy enough, to share with their friends and the public.

    People are going to continue to be able to remix culture as long as they have the tools to do so. What I would suggest is that you find ways to make your work more valuable--that goes for Hollywood and the music industry too. Look at 3D ... theaters have successfully introduced a new way to watch films that has got people going back to theaters. Instead of waiting for home 3D to catch on they should be and probably are, thinking about what is "next."

    I would suggest looking at his lectures on YouTube to get a better sense of his ideas because I interpret his commentary in a completely different manner.

  9. If you take a photograph of a painting and then sell it as postcards or in a book, how is that not "stealing it" by your definition? What if the picture is of a building or a sculpture? Personally, I see the act as a transformation (or a remix), but I don't see room for the activity in your text.

    How about Richard Hamilton's "Just What Is It that Makes Today's Homes So Different, So Appealing?", or in fact much of the Pop Art movement, how is that not stealing too? What about someone that creates a sketch of a copyrighted work? What if the "sketch" is so good it is hard to distinguish from the original?

    Are you sure that people who remix are really stealing? Remember, theft denies the rightful owner use of the stolen good or service, and that does not seem to apply here.

    Does the technology, medium or method used to create the new work deny its right to exist? What if the "remix" took many times longer to create than the original?

    This whole area is full of shades of grey - and the only thing that everyone seems to agree on is that the current way copyright is defined and enforced isn't working. I happen to be in favour of copyright, I personally benefit from its protections, but I can also see the remixers point.

    An earning model has been suggested in the past which may offer a route to a solution, it is a model that looks at the question of profit. If the remix is not earning any money then leave it alone, but if it starts to (or wants to) earn money then the earning party should pay some kind of license for the use. Similar to what happens with sampling. This has the potential to be fair as it would then get the content aggregators that earn advertising revenue from other peoples work (who may not receive anything), but then the issue of orphaned works comes up.

    If you have some ideas I'd love to hear them, but this really is a complex area and I don't think black and white statements are always helpful.

  10. Nobody is giving up their rights. They (we) are using the law (the same copyright law that some people protect overzealously) to exercise our rights in a different way. If the concern of comercial use without economical benefits for the original author worries you, one can always use a different version of it.

    All my pictures are licensed CC and I will have them that way forever.

  11. Interesting post. I wonder if you are making a distinction between piracy (copying an entire work) as was the case with Napster and remix which is at times using a small fraction of a work in creating something new (see Kyle's point about Girl Talk)

    And while I can't speak for Lessig, he has stated many times he is not advocating theft or ignoring copyright, but for examining and reevaluating the copyright laws as they are currently written and how it’s currently working for us in a digital age. I don't know how that puts him in an "ivory tower".

  12. Thanks John, and we're with you!

    If any of your readers are in the southeast they should register to attend a FREE full day copyright seminar hosted by APA Charlotte on March 19th.
    Check out the Upcoming Events section of the website.

    Panelists include
    James Silverberg - Atty @ The IP Group
    Michael Grecco - Photographer
    Cindy Hicks- Art Director / The Martin Agency

    And John, let us know when you want to come down again. We really enjoyed having you a couple years ago and we really appreciate your knowledge and insights.

  13. I would like to echo a lot of what Keith is saying, and also clear up a couple things. First, to say boldly that remixing is not art is to have a very narrow view of what art is. For starters, are we even allowed disqualify something from being art? What would that look like? Certainly, by you definition, Warhol is out. What about a composer who uses a previous melody as inspiration? Can he be art as long as he changes it by 1 note? 2 notes? Where does parody, satire come in? My point is not to be argumentative but rather to give a couple examples of the fluid, hard-to-define nature of art.

    I would also like to pull out something else Keith said. What do you intend to do if someone uses one of your photos? Imagine a painter finds your in a book or shop and does a painting from your photo? Or what if I compile an installation piece with a lot of found objects, including one of your photos? Would you sue me? If so, to what end? I haven't prevented anyone from buying your book of photos, or a print, I've simply used it in a different way.

    In other words, I feel like (implicitly) there may be some straw dogs about. For instance, to remix is not at all the same thing as to illegally download. To re-appropriate someone's photograph is not the same thing as to pass the photo, wholesale, off as your own work.

    Interesting discussion, thanks for letting me contribute.

  14. Learn the facts. Lessig encourages CC as the artists choice... To choose to say remix ok but commercial theft not ok. What if photographers needed permission for every work they recycled? Pay the architect for every building photo? Every sculpture caught in frame? The industrial designer for every car or household object? On your logic it's hard to imagine any photo without a little theft...

  15. I disagree with nearly all of this. The music industry keeps 99% of the money you spend for itself, gives the crumbs to those 'lucky' enough to get signed, and then uses its legal muscle to keep everyone else off radio and TV. The lucky artists get bound into multiple-album deals when they're too young to know better; if they get popular they regret the terms, and if they don't the label can sit on their work for ever without releasing it, thereby stifling them. iTunes further reduces the artists' take by slapping a hefty margin on top, then they DRM it so that you can't listen to your music on a non-Apple-approved device and will eventually lose it all through an accident (crash/virus) anyway.

    The 'collateral damage' is nothing to do with DJs being forced underground (people have been remixing for thirty years and they care even less about legality now than they did then). The collateral damage is million-dollar punitive lawsuits against *alleged* copyright violators who are often nothing of the sort, and billion-dollar lobbying of governments worldwide to remove net neutrality, gain extraordinary powers to snoop on people and cut off their internet access without due process.

    Lessig is not advocating copyright violations, he's just saying that the world has changed and giving old industries the power to crush people just to maintain their temporary monopoly is disproportionate; it's unfair to misrepresent him in this way.

    Your enemy's enemy is only temporarily your friend, and if you think the record labels or Disney are on the same side as photographers, musicians, or the public, you're naive.


  17. check out this video about the "amen break" and copy right. if you are interested in copy rights youll find this clip extremely interesting

  18. Another series on subject of Remix worth checking out is "Everything is a Remix":

  19. Your reasoning is sound as long as we talk commercial use. Why should anybody profit off your work without giving you a fair share? They shouldn't! But private website owners, school teachers?
    Copyright should protect the rights off the original inventor. Why is copyright so much longer then patents? Is making a photograph or even a Disney movie worth so much more protection then an Alzheimer vaccine?
    Copyright has been wrenched by the big corps so much, that it has lost it's credibility. It is not just and what is a law that is not just worth. That is why people ignore copyright law.
    Creative Commons is really your friend. Because you have the ability to clearly show what people are allowed or not allowed todo with your work.

  20. I've read through the comments and it would seem that many of you feel that it is ok to use other peoples work if you feel the reasons are justified... So is it ok to shoplift from a store? I find most people see that as a crime, but what if the person shoplifting is poor and just needed something to eat? Does that make the theft alright? What if someone down the street just needed to mow their lawn and decided to just take your lawn mower for their needs? Is that ok with you? Theft is theft no matter what pretty package you dress it up in.

  21. Firstly, blanket statements and black and white arguments are not helpful. Not only are they logically fallacious but they get people emotional.

    I'm troubled by the use of "ivory tower" mostly because it isn't an argument at all but rather a poisoning of the well and again, not helpful or pertinent to the argument.

    This is and always has been a heated discussion within the art world. I saw someone in the comments discuss pop art movement so I will not revisit that point. Bottom line here is that there is no line, just sort of a fuzzy muddy spectrum. No one is arguing that there shouldn't be copyright protection.

    By saying the creatives that make these remixes are stealing what is really being said is they shouldn't have any rights and their art form is less valid than yours. And by doing so you are now speaking from a perspective where you are the authority of who is a creative and what art is.

    There should always be attribution of media remixed or not. Depending on context, how much of the work has been transformed and, (of course) profit is really what should determine compensation. Sharing of ideas and looking at our world in interesting new ways is what art is all about and arguments like these are only stifling.

  22. Here is my answer:

  23. My relationship with university professors or researchers is different. I photograph mostly for educational publications, which requires correct identification. I occasionally contact specialists in botany, geology etc to help identify or confirm the identification of a picture. I first send an e-mail request, then upon acceptance I send a 300ppi, 20x13.5cm file, which will print nicely. I used to say that they were welcome to use them for classes, for Powerpoint presentations etc, but that I would like to be contacted in case of commercial use. Now I stopped saying it as it seems I often get no reply. Once the request came from a botanist who wanted to use some of my pictures of wild begonias for a general public book; I said (to his surprise) that I would charge for them, he then only used one picture. I let a researcher use two of my pictures for an academic presentation without charge. I think a distinction must be made between academic and commercial use; and who takes time to identify a picture should get a courtesy copy of it.

  24. Seems to me you have stolen and mashed up Lessig's argument without proper attribution. You are on the web you know. You can link to someone's arguments and quote appropriately to show evidence for your assertions. But there are zero links to Lessig in this poor post. And guess what? It doesn't cost a penny to do so.

  25. @David Campbell - I'm not sure but after doing a little investigating on who Lessig is and finding myself in agreement with him on a lot of things I'm only guessing you were speaking to my points. If you are going to make accusations you could take some of your own advice and highlight specific places you believe were "stolen" and link to them.

    If you were addressing arguments are actually my own lessons learned from my four years as an Art student and taking an exhaustive amount of Art History classes (sorry no links). If you look at Fine Art in the 20th century you can see a lot of remixing and transforming of objects in many ways to create Art. The Pop Art movement, for instance, is one of the most clear examples of it and that tradition has continued in the modern Art world.

    You are correct in that my basic point is actually very similar to one of Lessig's and that is re-mixers are creatives just like any other. My perspective, however, is coming from an Modern Art and theory perspective and not the perspective of legality and decriminalizing it.
    here is a link:

    Thank you for introducing me to Lessig's arguments, I now also have a legal perspective from which to argue from.

  26. @Andrew - if I had been addressing you, I would have indicated that. The comment was directed to the author of the original post. Not at all sure why you took it as directed at your views. Open comments refer to the original post, people use names if they want to direct to subsequent contributors.

    The original post is a linkless and unsupported argument that opens with a massive generalisation, setting Lessig up as someone arguing against all copyright, which is far from the case as some other commenters note above. My parodic use of 'stolen', 'mash up' and 'payment' turns the original author's framework on his own position. Links for that? Any and all of Lessig's books and videos, as you found out. If someone (the original author) wants to write a pejorative critique of Lessig and his 'ivory tower' view (and what a cliche that is, as you also note) then they have an obligation to support it with direct attribution.

  27. Napster is dead, but piracy is still out there. In fact, there is ZERO evidence that the quantity of legal, paid downloads comes remotely close to that of illegally obtained content.

  28. Part of the problem people aren't including in these arguments is the portions of copyright where the artist is granted the control of an art and how and when it is displayed, not just making money. If I deem that my painting 'Absolute Zero' only be shown at midnight on the third Tuesday of March and in Dublin, Eireland, what right should a remixer have to take that away from me? What if there is something in my art that only shows at that location at that time and at other times it is not representative of my intent?

    What about a remixer who has used my work to say things I abhor? Some generally non-accepted group (say a hate-mongering group) decides to use my 'remixed' art to forward their agenda and I'm supposed to lie down and take it? What if my future ability to make a living is tarnished because someone else used my work and now I can't get a job since the use was vile to my possible clients but used without my permission? Yes satire, commentary and educational uses should be protected, but but work is my heart: taking my work and mashing it is insulting.

    An example, A family member was given a gift of a piece of work and it was a unique and signed piece (clearly marked as mine and on the back wrote all rights reserved.) A year or so later I find out from other family members that this person had taken my gift, blotted out my name, wrote their name on it and showed it to others as their own, to the point of trying to put it in a contest as their original work. Knowing this I went to the person's house demanded the piece and after they shamefully brought it to me, I proceeded to place it in a grill and burn it in front of everyone.

    That's how important my work is to me; rather than let someone abuse my work, better to destroy it. Even if someone thinks "well a remix totally changes it's looks" it doesn't matter; my intent would not be preserved and I have lost control of my work. If I am told that I have no right to my own works, then I will quit creating for public viewing and have everything destroyed on my death.

    What about a remixer of remixes? Someone decides to take the remix and extract most of my work as a 'new' work? I have no rights then under the idea of remixes being original works because "hey it's a remix (of a remix)"

  29. @David - I apologize, at first read I didn't get that.

    @Paul T - What if, what if, what if... what if a bus were to run you over tomorrow and your work gets stolen and aliens invade earth and pigs grow wings and fly around pooping on us and your work.
    Dude, everything is borrowed, inspired, remixed and added on to. It is called the progress of human civilization.
    It is your right as an artist and an individual to pursue any and all things you feel are a violation of your rights; the problem is others do too. You are essentially saying it is only your conception of what creativity is that is valid. Sorry dude, not buying it.
    What is art if it is not shared. To me it is a waste.
    I sincerely hope your post is hyperbolic or sarcastic because REALLY???

  30. My What Ifs are about clarifying the law and boundaries. Those are fairly possible what if's, your aliens are not. In fact, there have been some (rare) cases where people's artwork has been used by those they would never have given permission. A recent story of a young lady who's art was stolen and used on a cover of a porno dvd has been talked about. She had no right to reject that?

    If you would, please tell me a time when you feel your art would be abused and you should have some legal redress? What point would be your personal breaking point? What kind of photography do you do that you don't mind others using it?

    I agree that all things are revisions of past things, but there are clear degrees of changes. If I take one of DaVinci's paintings, say the Mona Lisa, or if you prefer 'La Gioconda', and slap some red transparent paint on it and call it mine is that right? If someone pulls my painting into their remix verbatim, I believe they are doing the same thing. What is so hard about creating an 'original' work to be used as the basis for your remix? What's so hard about asking the author "hey love your ____ can I make a remix?"

    And art not shared being a waste is certainly a valid opinion, one that we don't share. I make my art for myself, I share with family and clients what I feel I can afford to share. Art is something you've drawn from inside yourself and did not exist in that form until then. A drawn portrait of my aunt done in oatmeal and my blood on green Berber carpeting would be original: her image is nowhere else and to my knowledge no one else has used that media.

    When using others images/media/etc as a basis for your art, you walk a very gray line to me ... once again the degree of 'newness' comes into play. "I can't define obscene but I can tell you when I see it." I'm not much of a fan of collages of other peoples works being used even in novel ways because I believe this is flirting with trampling the original artist's rights.

    Hyperbolic? No. Sarcasm? No. Yes, really.

    If I take your point of view, nobody has any rights to anything they create, and that case means no progress .. why share or produce when every one can profit from my work? There are limits to both my rights and your rights - we all have to find a useful medium between the good of the one and the good of the many.

    I'm not saying it can't be creative to remix, but I am saying that as a primary creator, my rights supersede those of other artists working derived works from my paintings or sculptures or drawings or photographs or... Notice I said derived works; clearly derived. In school we were taught a 10% rule: there must be at least 10% difference or it's duplicating directly. I disagree with that view, depending on the pattern of duplication, 10% is too little.

    If my artwork is clearly derived from someone else that I had contact with, then I am wrong to claim it as solely my work. Direct derivation means my rights, as artist, are prime.

    And yes, this discussion is about beliefs: I believe that there is a limit to reuse of previous works, you appear to not believe that. I can't agree that my personal works should be freely available fodder for other people with no degree of 'newness'.

  31. Lessig is unfortunately typical of many (although to be fair not all) idealistic academics. He would do well to live in the real world for a while and engage in some of the work that we and others have to do in order to be paid and make ends meet.

    I suspect the problem here generally is that he (I'm guessing) is employed by his university. Most creatives by contrast are self employed. He has no real clear idea where his money comes from at the end of every month - just appears in his account.

    Creatives (or any other self employed person for that matter) have a very real idea of where it comes from, or where it won't come from if they arn't paid for useage. They also have a much more real world concept of what happens when it doesn't come in (more likely from time to time if you are self employed), and what has to be paid in addittion to regular living expenses in order to produce the work (ie they are a business and need a concept of overheads).

    Lessig has nothing to loose through his comments, so in his eyes, he thinks it is ok to preach on how to destroy other peoples livelyhoods without a care in the world. I whish this was the first time I have seen this sort of thing from academics, but sadly it isn't, ill informed otherworldly comments with no grounding in reality seem to be their domain (although not for all to be fair).

  32. Most photographers do not create their subjects.
    Somebody else creates most of the subjects photographers shoot.

    Should photographers have to pay for the right to photograph any subject that has not commissioned the photographer to shoot them?

Leave a Reply