John McCoy

Violators will be shot

My comments last week were a bit of a mess and I want to clarify. I’m not in favor of abolishing copyright or of people trying to profit from their work. But I do worry about what seems to be an ever-broadening sense of entitlement on the part of rights holders. Not only have copyright terms been extended to a point that they have long ceased to be incentives to creation (why should Disney create new characters when they can continue to coast on ones that are 90 years old?), but also (and more troubling), rights holders are increasingly demanding absolute control over every word, note, or pixel that they produce. Forget about Warhol not being able to paint soup cans. We’re living in a world where the French government claims copyright over any image of the Eiffel Tower at night.

In at least one work on Maisel’s portfolio site, the image is largely made up of someone else’s sculpture. Perhaps he had the sculptor’s permission; I doubt he bothered to secure the permission of every architect whose work he’s photographed. Of course all these photos are transformative. But all these photos rely upon the existing work of other artists, some to a greater extent than they rely upon any choice Maisel made or technique he employed. Whether Baio’s work was transformative is something we can argue about but not something that will ever be decided in court.

When I read discussions of this situation here and elsewhere I’m struck most by the type of comment that begins “Well, I make my living as an artist, and I think…” More often than not, the comment goes on to defend Maisel and any and all claims of the rights of the artist against an antagonistic world. The implication is that the interests of the artist—and by extension, of Art—are served best by the broadest interpretation and application of copyright holders’ rights. But is this true? Are artists better really better off playing hardball? And perhaps more importantly, how does such behavior serve the culture at large?

One word that I’ve seen a lot in defenses of Maisel is “respect”—as in, people need to respect the work that photographers do. That would be a reasonable point if Maisel’s approach had been proportionate to the imagined harm. As it stands, it’s like supporting Old Man Potter at the end of the block who likes to take out neighborhood dogs with a shotgun when they enter his yard. He’s only defending his property.

The word I’d like to stress is “humility.” All arts are derivative, but photography especially relies on photomechanical processes for its production. As much art as the photographer brings to the process, she still depends on pre-existing subjects. These includes the myriad work of architects, fashion designers, engineers, and even other photographers that make up the scenes she captures. I would hope that photographers, perhaps more than other visual artists, would understand that art is fodder for art, and that if we make it necessary to contact, ask permission from, and pay every possible rights holder out there, we are pricing a lot of people out of making a lot of work, and that’s also bad for artists—and everyone.

The sound of money

There’s a fable that is told in many different versions around the world. In some European versions the hero is a wandering clown, but in the version I first read as a boy it was Ōoka Tadasuke, the 18th century Japanese magistrate who has many folktales attached to him. The story goes: an innkeeper overhears a poor student tell a friend that he always eats his rice as the innkeeper is preparing his fish, and thus the smell improves his meal. The angry innkeeper brings the student before Ōoka, demanding payment for the stolen smell. Ōoka responds by having the student spill his pocketful of coins from one hand to another, and tells the innkeeper that the smell of fish has been repaid by the sound of money.

The popularity of this story speaks to a deep, common-sense understanding that there are some things of value that are beyond commerce. The value of these things lies in part to their having no ownership, to the way they float in the air, literally or figuratively. Unfortunately, this doesn’t mean that indignant, entitled, or greedy individuals won’t try to assert their claim.

Making the Internet rounds today is this disturbing piece on Waxy.org. Andy Baio, a tech enthusiast, made a series of chiptune versions of Miles Davis’s tunes on Kind of Blue; when he distributed the files, he included a version of the Kind of Blue cover that had been highly pixelated. The original photographer of the Davis portrait, Jay Maisel, sued Baio for copyright infringement. The case settled out of court for $32K.

I’m not going to go into the legal issue here—I have strong feelings about the stupidity of the current state of intellectual property law and I’ll bore you all some other time—but I do think that the story poses the question, what motivates an artist to take such disproportionate and vindictive action against a fan? It’s not money—Mr. Maisel is one of the most successful commercial photographers in the world. In Baio’s account, he quotes Maisel’s lawyer:

“He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission […]”

With all due respect, I’m certain I can’t understand how Maisel’s hurt feelings are worth $32K. What’s being referenced here is the noxious concept of Moral Rights, the idea that an artist’s right to preserve the integrity of a piece of work can and should prevent anyone else from editing them in any way—including, apparently, using the original work as a springboard for something new. The American system of copyright does not, in fact, recognize Moral Rights (it’s mostly concerned with people getting paid), but the romantic ideal that somehow the artist’s intent should trump future artists’ intent forever and ever is anti-Art. Everything is derivative. That’s the way culture happens.

I make a part of my living as a designer and illustrator. I have used existing works of art as inspiration, as reference material, as grist for the mill. Maybe some other artists have taken bits and pieces from what I’ve done and made something new. I don’t know of transformative works, but I have found places where my art was used unaltered without attribution or payment. If someone were to use one of my illustrations commercially, I would ask for payment; if they were to use it in a way I found offensive, I would ask them to stop.

But really? Most of the time, it just makes me smile—because I know my work is floating out there along with all the other smells.

Fight for your right

I’m not really the type to have role models; people are too complicated, too full of good and bad to be credible heroes to me. But if pressed for an example of someone who showed great courage in speaking truth to power I would have to go with William Gaines.

Gaines is best known today as the longtime publisher of MAD Magazine, and while financing a rag whose purpose was to pervert middle-American values and raise several generations of smart-ass punks would be enough to commend him, I think his finest moment came in 1954, when he was the publisher of the EC Comics line of horror comics: Tales from the Crypt, The Vault of Horror, Shock SuspenStories, etc. Red panic was in the air in those days, and a crackpot psychiatrist by the name of Frederick Wertham had just published a book entitled Seduction of the Innocent, which claimed that violent comic books were perverting American youth, turning them into either Communists or homosexuals or both. The upshot of all of this was that Gaines was called before the U.S. Senate Subcommittee on Juvenile Delinquency to give an accounting for why his comics were so gory and disgusting and devoid of redeeming qualities and really wasn’t he ashamed of himself.

You can read his testimony in its entirety online, but the long story short is he refused to play the game. When asked to justify himself—to explain what possible good could come of comics featuring beheadings and eviscerations played for laughs—he shrugged: “It would be just as difficult to explain the harmless thrill of a horror story to a Dr. Wertham as it would be to explain the sublimity of love to a frigid old maid.”

He stood condemned before he spoke a word, of course, and within a year EC Comics was forced to stop publishing its horror line because of the new guidelines set forth by the Comics Code Authority. But I’ve always loved the image of this bespectacled, schlubby man effectively thumbing his nose at the idea that entertainment had to serve some noble purpose. Here was a guy who refused to justify something that had, and needed, no justification. There are many people who pay lip service to the idea of free speech when that speech is in service of a cause. It takes courage to defend free speech in the service of nothing other than simple self-gratification.

I often think of Gaines whenever someone ties themselves in rhetorical knots trying to answer scolds and censors who aren’t happy with the kind of fun others are having. Video games promote hand-eye coordination; I’m not wasting time on the Internet, I’m building my social network; I’m only reading it for the articles. Look at the convoluted points activists make when trying to legalize marijuana: they talk about pot’s medicinal uses, the ways the fibers can be used to make rope and the ways seeds can be used to make oil and the ways the roots can be used to make kitchenette sets. What they don’t say is: “I want to get high, and I think it’s fair that I be free to do that in a safe and legal way.”

There are some things we do for shits and giggles. Most of the best things: roller coasters, horror movies, bourbon, sex. You have your own list, and it’s probably different, but you don’t have to justify it to me.