[d@DCC] Who should own your wedding pictures?

[Jon-o Addleman]

On Wed, Nov 03, 2004 at 04:41:12PM -0500, Wallace J.McLean spake thusly:
> > Just saying that there is an interest to use the image doesn't make 
> > something the domain of copyright. 
> 
> Yes, it does. If I want to use an image, there is a copyright 
> implication. Always. Maybe I own the copyright (problem solved) or the 
> image is out of copyright (problem solved) or neither but there's an 
> exemption I can hang my hat on (problem solved). But using a "work" 
> always entails going through this analysis.

Maybe I misread you - I just meant that 'interest to use' shouldn't
determine the author. Of course copyright is implicated in who has the
*right to use*.

> > The subject of a photo is not the creator of the photo 
> > (generally).
> 
> Utterly irrelevant. The subject of a domestic photo should still have a 
> right not only to negatively estop the use of their image, if it can be 
> done so through privacy laws as the photographers suggest; but also a 
> positive right to use such an image. It is not good cultural policy, it 
> serves no purpose for the greater good of society whatsoever, to force 
> someone to obtain copyright clearance, as a 52-year-old man, to 
> reproduce their own Grade Four portrait from when their family live at 
> Lahr. 

I don't really think that it is irrelevant. The whole point of
copyright, in a simplified form, is that a creator is granted a limited
monopoly over their creation. All the rest is just working out the
details of that monopoly.

To divorce copyright from the creator entirely is really quite a
fundamental change, as I see it.

Now, I agree with you that the case of an old man getting clearance on
old school portraits is ridiculous. But it seems to me that the
ridiculousness stems from two things: first of all, the duration of the
copyright, and secondly, perhaps the portrait's copyright should be
either transfered to the subject, or else made less restrictive through
a contract signed at the time.

Maybe it could be best handled by calling a portrait a special case,
with its own rules? I certainly don't see that all photographs should be
treated the same way in this respect, but whether that difference it
handled by contracts, or explicitly stated in the copyright act is a
good question.

> > They take part in the creation, of course, but one could argue that 
> > they function more as tools, or as raw materials for the creator to 
> > use. 
> 
> And the poor-blighted creator -- God, I'm sick of this rhetoric -- in 
> the case of commissioned domestic photography, only creates this work 
> in the first place because he is paid to do so.

This doesn't matter at all, IMHO. The creator is the creator. Any
professional 'creator' does what he does for money. Is the only way to
get a copyright on your creation to do it for free?

> However, books and photographs are two very different species. A 
> stranger to the book, a year or a century from now, has the necessary 
> information, inherent to the physical form of the book, to determine 
> (or begin to determine) whether copyright subsists and if so who might 
> own that copyright. A stranger to a photograph, except in a very 
> minuscule proportion of cases relative to the billions of photographs 
> which exist, does not.
> 
> Photographs are NOT just like any other type of work, which is why the 
> Copyright Act cannot (or should not) just assume that they are and make 
> idiotic dead-letter copyright rules. Copyright is supposedly about 
> advancing culture and creativity; but if it becomes dead-letter -- 
> which it rapidly does with photographs -- its cultural and commercial 
> benefit is quickly outweighed by its cultural and commercial burden.

Part of my reasoning is that I really do want a simple system that works
for all kinds of creation. I see that you're against that. The main
reason is that forms of creativity change - more and more rapidly in
recent years. And it because difficult to say what exactly constitutes
'a photograph' or 'a computer program' or a 'musical composition'. The
lines get very blurry, especially with the kind of multimedia displays
that have become commonplace on the internet, featuring all three of
those aforementioned categories blurred together.

Something in me wants to avoid the situation where we have a dozen
different copyright acts, each applying to a different kind of work.
Even more, you get situations where we just don't know the copyright
status for a given work, because it hasn't been explicitly defined in
the law. We see that now, with a law designed around print materials
that doesn't define the author of, for example, a movie very well at
all.

I'd love to find, instead, a way to say "copyright is this long, and
this is an author, and this is a work", and that that is the extent of
the copyright law, instead of the huge pile of confusing and incomplete
verbiage that we now have. But then, I don't really speak legalese...

> I know. I have lost count of how many archival works I have not been 
> able to use because of dead-letter copyright.
> 
> And I am starting to feel pretty bloody lonely as, apparently, the only 
> Canadian who seems to "get" this. Perhaps I should move to Lessig's 
> neighbourhood.
> 
> This IS about creator's rights. The rights that would be given to the 
> portrait photgraphers in this case will only take away from the rights 
> of historians and genealogists and others who re-use and adapt the 
> cultural past. Whe is this equation so difficult for this audience in 
> particular to grasp?

I think (for me anyway) the difficulty is in that is seems a reversal of
the basic notion of copyright. Copyright, to most people that have
considered it, is the right an author has to control his works. You're
describing someone who pays for a work to be able to control it.

Perhaps part of the problem is that your examples focus solely on
photography, and I don't see that as being so exceptional. Maybe you
could explain your views regarding (just as another example) a composer
hired by an advertising firm to write a tune to use in a tv/radio ad?
This seems very similar to the notion of a photographer taking a photo
as a matter of a commission.

What about a programmer who, as I have done, writes a little script for
a web page by agreement with the site owner, again for money? Is this
the same?

What about any other kind of work?

Also, I'm curious what Lessig says on this subject - where does he
discuss it?

-- 
Jon-o Addleman - http://redowl.dyndns.org
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