Sunday - March 05, 2006

Ars Gratia Artis

When you get right down to brass tacks, there are some people who just cannot be reasoned with. The concept of acting rationally and working out difficulties between two or more parties totally escapes them. Their mind is made up from the git-go and the only reason to communicate with you or anyone else is to convince everyone how right they are and how wrong the rest of you must be. I have pondered and gone back over and over again the recent kerfuffle with the folks over at Photo.net. In fact, I have probably spent too much time trying to discern how I could have handled the affair better.

I have come to the conclusion that there is absolutely nothing I could have done to mollify the amateur photographers over there. I thought what I was doing was (a) within the somewhat vague guidelines of the Fair Use clause of the US Copyright Code, and (b) of some help to them as the photos shown here were driving traffic to their site and increasing membership for them. According to a small group of rabble rousers, whose pictures weren’t even involved in the incident, I was guilty of STEALING their creation. The truth of the matter is the rabble rousers were outraged that a conservative weblog was displaying their pictures. The very idea was enough to send a few of them into apoplexy, judging from their comments.

Now, according to US Copyright Law, anything you create becomes copyrighted automatically as soon as you create it. Recognizing that this definition would, in essence, preclude anyone from ever referencing someone else’s writing or artwork (or even opening a library), Section 107 was added to the code. This is the Fair Use clause and is almost as vague as a law can get:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The last time I checked, the words “criticism”, “comment” and “news reporting” pretty much describes this weblog. Admittedly, there is a lot of satire, bad jokes and humor thrown in from time to time but the overall theme is pretty well established after two years. Now, let’s examine the four points and try to do so in as objective a manner as possible:

What was the purpose of the use and was the use for commercial purposes? Well, the purpose of the use was stated here several times - to encourage the art of photography. There was always attribution to the photographer and a link back to the photographer’s site with each picture. I know from reading the comments here that several members here would use those links to visit the photographer’s site for more. In a normal discourse, that would be considered being helpful and promoting each photographer’s talent.

Then we come to “commercial use”. That’s a sticky one as a few of the members over there noted that since I accept advertising then I must be a commercial venture out to make a profit. I dispute that on the grounds that I don’t get enough revenue from advertising to even pay for the hosting services, much less the bandwidth and storage fees, among the other costs of sustaining this hobby of mine - and that’s all it is and all it probably ever will be. I have a full-time day job that has nothing to do with this weblog and that’s what pays the bills at my house. I never set out to make a profit or do anything but have fun and write.

If I wanted to make this a for-real commercial venture I would have quit my day job, thrown myself into this weblog full-time and be stinking rich by now from having sold enough tee-shirts, posters, bobblehead-dolls and coffee mugs that I could retire. As for donations, forget it. The last time one of the stingy readers here donated any money to me was over a year ago and that was only $10.

Next, what was the nature of the copyrighted work? It was a photo taken by an amateur photographer who obviously had no intentions of selling it or he wouldn’t have posted it on the world-wide-web for everyone to look at or download. That being the case, how is the photographer suffering a monetary loss? Even if this amateur photographer decides to start selling his photos later, the ones posted at the amateur photo site have already been “stolen” by everyone in the world.

Next, the amount or portion of the work used. Well, when is a thumbnail not a thumbnail? Small images of artwork are all over the internet with solicitations for you to purchase the full-sized print for a substantial sum of money. This is done by professional photographers quite often. The fact of the matter is I had to shrink every photo I used here down substantially to make it fit this weblog’s format. In order to view the photographer’s original work you had no choice but to visit his or her site - which I made easy for you by providing a link there. So all you ever saw here was a reduced imitation of the original photo.

Finally, the effect of the use on the value or potential market value of the work. I would argue that the current market value of an amateur photographer’s photo is zero, especially if he or she uploads it for public viewing by the entire world and half of the world’s population has downloaded a free copy. If the current value is zero then the potential market value will only remain zero unless the photographer can go out and make everyone return their free copy of his or her work.

Nevertheless, all of the above will make not a shred of difference to the “artists” over there. They are incensed with righteous anger that their photos were displayed on a weblog that expresses political opinion contrary to their own political leanings, even though there was never any connection either made or implied between the photos and any political commentary here. Regardless, all of the images have been removed here and an apology issued to the offended parties. We all lose.

With that said, the real loser in all of this is art itself. Art, whether it be music, photography, video or sculpture knows no politics - or at least it shouldn’t in a rational world. Art should be appreciated by Liberals and Conservatives, Democrats and Republicans ... everyone. It is the only thing that really distinguishes us from the beasts of the field.

This editorial was already in progress as something I wanted to say about the Academy Awards tonight anyway. This incident only served to highlight and coalesce the thoughts I had already started forming about a key thing we all seem to be missing lately - the separation of art and politics. Keeping politics out of art is almost as important as keeping government out of religion. Every year around this time I and millions of others cringe and wait to see what political activist messages are going to come from the Oscar winners.

For our own sanity, as a race, we need to keep politics and art separate. Art should bring people together, give them something to laugh at or cry at or just help us feel human again for a brief moment. It should never be used as a political platform for then we lose humanity’s only saving grace - the ability to sing when the darkness closes in.

Update: I have received dozens of e-mails of support and from several photo sites whose entire galleries are public domain. It looks like I will be able to continue the “Photo Du Jour” feature thanks to a lot of good people.

Posted by The Skipper     on 03/05/2006 at 11:38 AM   
Filed Under: • Art-Photography •  
• Comments (33) • Trackbacks(2)  Permalink •  

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Not that very many people ever read this far down, but this blog was the creation of Allan Kelly and his friend Vilmar. Vilmar moved on to his own blog some time ago, and Allan ran this place alone until his sudden and unexpected death partway through 2006. We all miss him. A lot. Even though he is gone this site will always still be more than a little bit his. We who are left to carry on the BMEWS tradition owe him a great debt of gratitude, and we hope to be able to pay that back by following his last advice to us all:

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It's been a long strange trip without you Skipper, but thanks for pointing us in the right direction and giving us a swift kick in the behind to get us going. Keep lookin' down on us, will ya? Thanks.

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