Book Arts & Copyright, Part III: Don't Be Evil

Wow, parts I and II of this unintentional series have really created a shitstorm of discussion and some nice, supportive emails. I'm not so surprised by the rampant misconceptions of who owns what and for how long, because that's what intellectual property lawyers thrive on, that confusion. I am surprised, though I shouldn't be, at how affronted people are by the notion that they can't use anything they want for free, and by the pretzel logic they will go through to justify their piracy. Despite further explication and lively discussion, some folks still do not get it. Repeat after me, people: there is no such thing as a free lunch. Using someone else's work in your own, altered or unaltered, without their permission, is piracy, and not the fun and amusing Cap'n Jack Sparrow type, either.

By piracy, I mean taking someone else's artwork—video, music, digital images, written work, what have you—and repurposing it without significant transformation of some kind (and this can be a very grey area) in a work of one's own, without paying for it. Music piracy has been going on for a long time, since the advent of cheap recording equipment (i.e., cassette decks). We've all made mix tapes for our friends. It was and still is a great viral marketing tool. The music industry didn't much like it, but they let it pass until it went digital on the Web. Then there was much stinkage about sharing files. We all pretty much know how this turned out: there was a lot of scuffling and locking of digital files at first, but now the music business is being slowly deconstructed from its behemoth incarnation back into a mixture of independents, virtual music stores, and restriction-free downloads that once again allow us to make mix tapes for our friends and virally market our favorite music.

Even so, you cannot put that piece of music back up for sale on the Intertubz and say it's your original work, even if you remix it (what's called a derivative work; more on this later). You still have to get permission to sell it legally, or even to put it out in public. You can sample or remix to your heart's content at home; you just can't sell it, or make it publicly accessible, or even share it with your friends, legally. And some artists are touchier than others about having their work sampled or remixed. For you to share it or make a profit legally, you must have permission from the copyright holder, in this case, either the artist, songwriter, or recording company.

The same fight is shaping up with digital video files now, but it'll be a longer and more bitter battle with Hollywood, probably. Although segments of the market, like The Daily Show, understand that having bits of your show turn up on YouTube is actually free marketing, other parts of the TV and movie biz are so afraid of not being able to squeeze the last nickel out of the product that they'll send cease-and-desist letters threatening huge fines and perpetual banishment from the Intertubz for downloading one captured episode. (True story. Happened to the under-aged daughter of a friend of mine with an episode of Crossing Jordan. NBC came down like the Hammer of God. And that was just for her personal use.)

There's nothing comparable to this situation with digital images or the printed word. Nobody makes "mix tapes" of their favorite photos or books. The most we do online (usually) is post pictures of each other's work to say "hey! Look at this! Isn't it cool?" That's a sort of viral marketing in itself, the Web being what it is. But writers and visual artists have a hard time getting their work out to the public without completely losing control of it, thanks to the mistaken idea that "if it's on the Internet, it's free." This is where copyright comes in. It's the only protection individual writers and artists have to fall back on when someone tries to pass the writer's or artist's work off as their own, or reuse it some way that the artist or writer doesn't approve of or agree to.

Here we get into that sticky area of sharing, which muddies the waters of copyright so confusingly. As this blog has changed its focus to book and paper arts, I've made a concerted effort to find some of the artists who are doing really innovative work and share some of it here. Generally, I'll chose a couple of photos from their site and post them with a blog entry that includes links back to their various sites, blog, artist's website, or their gallery's website. Have I asked permission to do so? No, though technically I should. This happens all the time on the Web, which doesn't excuse it. So far, I've had no complaints from anyone I've featured and some very nice thank-you's for the free marketing. This is the trade-off. Since my blog material is under my copyright, legally, I should get permission to use other people's images on it. But the Internet can reach so many more people than any other medium, based on the number of links you have, that many if not most folks let that fact slip by in exchange for free publicity. It benefits me by driving traffic to my site, and it benefits the people whose work I feature the same way. Nobody gets any monetary compensation except, possibly, the artist, through new buyers who may have seen the work on my site.

(Ironically, this very post has been pirated by a Blogger blog called Things Joie Will Do Before Dying. I presume one of those things will be "get sued by a copyright holder" as the whole site is pirated content. I'm filing a DMCA violation letter with Google, who owns Blogger, and flagging that blog. Why? Because they didn't ask to use it and they're just lifting it wholesale, without adding or changing anything. If they had asked, I would in all likelihood have said, "Delighted! Thanks for the link!" But they didn't ask. That's just rude.)

Peacay, who runs Bibliodyssey, and I had an email exchange about just this after the first part of this series was posted. His blog features images from library collections all over the world, although most of them are out of copyright, they are owned by institutions which usually require a payment for their use (this is often a processing fee to cover the cost of scanning into high-resolution files or for conserving the books themselves). Like me, he doesn't worry much about people coming after him for posting their images. Libraries are the original bastions of the notion that "information wants to be free," and most have neither the inclination nor the time to search out every "unauthorized" use of images from their collection. They know it's free publicity and hope it will drive users to their virtual and literal doors. The lawyers would say "go after both of them," probably; the institutions, perhaps, would see a greater good and decline to feel (in legalese) "injured," especially since there's no profit involved.

But when Bibliodyssey became a book, that was a different matter. Permissions were obtained all around. Why? Copyright is all about money, folks. Neither Peacay nor I profit from our blogs, except in intangible ways (notoriety) so nobody feels particularly threatened or injured by our use of images. The web is free, aside from your ISP and domain registration fees. The sole reason publishers make books is to make money (that's a whole different blog post right there). Legally and practically, some of that money must trickle down to the artists who make the contents (who have to eat, too), their executors, or the repositories of that contents, and this is why permissions cost money. Fortunately, publishers are pretty skilled at getting permissions for reproduction, and will foot a lot of the bill for it. If you're reproducing or using someone's work in your own, you need to foot that bill too. In effect, you're the publisher. If you're going to use other people's creative work in your own, be responsible and act like a professional.

(Coincidentally, there's a piece in the New York Times Magazine "The Ethicist" column that addresses the uploading of a still-copyrighted but out-of-print book. I like Randy Cohen's take on the law, and the author's ultimate attitude to an act that is also piracy. This is why it pays to ask. Not everyone says no or wants money. Unless you're asking Harlan Ellison.)

Some people in the comments to the original post are under the impression that buying the book allows you to do whatever you please with it, as though it were scrapbook materials you buy at Michaels. Not true. When you buy a book, you still do not own the copyright (How could you? Then everyone who bought the book would own the copyright). By purchasing the book, you have only purchased the right to read the book, lend it to your friends, rebind it for yourself (i.e., repair it or fancy it up), give it to a library (who may rebind it and lend it out to patrons for free; no profit there), burn or otherwise mangle it (not for profit), throw it away, or resell it to a used bookstore or other purchaser as is (and usually for much less than you originally paid for it). You have not purchased the right to use the text between the two covers, or the design of those two covers for your own product, to sell to others for a profit. That means that even if you take the book apart and rebind it between covers of your own design and then offer it for sale, without their express permission, you are violating the author's copyright.

But it's your design and work, you say. Well, no, it's not, not entirely. You've created what's called a derivative work, i.e., based on the original. The covers are your design, but someone designed the layout of that book and chose the typeface, and that someone wasn't you. More importantly, someone else slogged many years over the choice and arrangement of those words that were then bought, edited, and typeset. Moreover, the book as published is a package, all of it protected by copyright. There are a number of very talented book cover design artists who would gladly skin you alive for using their designs without permission, with or without credit, for anything other than the wrapping the book they designed them for. The derivative work thing is really not that complicated. If you are only altering something, that's a derived work, and you still need permission (unless, as with many altered books, it's already out of copyright). The amount of alteration plays some role, but it's a really gray area I'd stay out of, if I were you. Just bite the bullet and get permission, or make sure its copyright-free.

In case it's still not clear what a derivative work is, here's what the U.S. Copyright Office has to say about it, and the issue of transformation of the original, as well:

A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.

Note that "[o]nly the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author." If you do not own the copyright, hands off, without permission.

Here's a more obvious, real-life example from a blogger who linked to Part I of this series. She's a designer and artisan of children's decorative objects and seems to have a pretty profitable business selling through several vendors. Her designs were first lifted whole cloth by another "entrepreneur" who claimed she could paint anything like the examples she'd lifted from other artists. What happened is not a pretty story, and neither is the followup investigation. The problem for the original artist is not just lost sales. It's lost time chasing pirates down, time that could be used in the studio. It's also what marketers call "brand dilution" (even if you don't have a registered brand) if someone is copying you, or reusing your work. What's real, what's Memorex? But mostly, it's stealing money out of the legitimate, creative artist's pocket.

This is also a good time to remember the Golden Rule: Do unto others as you would have them do unto you. I doubt very much that most of us would appreciate someone else making money off of our own work. Quite frankly, if you're not creative enough to make your own designs without exploiting other people's creativity, you need a new hobby.

If you're still unsure about this copyright thing, Brad Templeton (founder of ClariNet, the first and one of the largest on-line newspapers) has two great pieces on copyright: 10 Myths (really 11) About and A Brief Intro. Please memorize these. They will save you a world of hurt.

Comments

[peacay]

--Neither Peacay nor I profit from our blogs--

Technically speaking that's not quite true. I would think in the eyes of a court it is a 'yes' or 'no' situation with regards deriving any income. The argument that it's only some small scale advertising/referral would be as spurious in the eyes of the law as insisting on derivation rights after purchasing a book.

As I say, it's a technical point, but, from my perspective, incredibly important - I must rely on the good graces of source repositories, careful attribution and, hopefully, a consistent track record, to do that which I do without attracting nefarious interest.

Actually, thinking about it, I imagine the income part wouldn't affect things much with me. Most licensing from libraries etc allows for personal use but usually does't allow republishing such as with a website. It all funnels into the need for 'respectful conduct' I suppose.

[Lee Kottner]

The argument that it's only some small scale advertising/referral would be as spurious in the eyes of the law as insisting on derivation rights after purchasing a book.

That's true, in the absolutism of the law, but it does seem to make a difference to many people and organizations, when it comes to reproducing digital images on the web. I suspect that's part of the reason you remain in the good graces of the repositories you cite. Usually, it's the lawyers who get het up about casual file sharing, not so much the copyright owners. Not always the case, I know, but there are cooler heads who have a better grasp of the spirit of the law, rather than insisting only on its letter.

"Respectful conduct" as you call it, is always a good idea, because the other kind ruins it for the rest of us.

[Jamie R Lentzner]

Thanks for the link to my blog - you say it so much more elloquently that I did in my post(s). I still do not understand how people could be so dumb and assume it is free - people amaze me. Great post!