Pile of Mulch and the Creative Commons

In September 2004, I posted a brief story about a honkin’ pile of mulch that had recently landed in our driveway, along with a couple of quick snapshots.

Five years later (i.e. last week) I was contacted by a nice woman at a film production company who were making a film for Microsoft about a Boy Scout tracking mulch sales with an Excel spreadsheet. They wanted to use my image in the film and were prepared to pay me $250 for the rights to use the photo. While flattered, I have serious ethical issues with both the Boy Scouts (of today) and Microsoft, so my first inclination was to go ahead and take the money. But I have another ethical issue that outweighs those – the idea that I deserve to be paid for a snapshot I took four years ago.

I am not a professional photographer, and I did not take the photo with artistic or resale value in mind. The photo was only taken to support that brief blog entry. Its small amount of value was used up in that post, and I was paid for my small efforts with the equally small amount of attention it received (yes, we live in an attention economy now).

In my work, I benefit tremendously from the efforts of people who give away their work. My career would simply not be possible without the thousands of hours that have gone into Apache, MySQL, Firefox, PHP, Python, Django, etc. Likewise, I am studious about giving away the source code to the projects I put time into. I benefit from blog posts by people who are solving problems, and I try to repay that debt in some small way. In other spheres, all of this would be considered “intellectual property” with a monetary value. In the open source software world, it’s called “the free exchange of ideas,” and it makes the modern world go ’round.

I believe that we all stand on the shoulders of those who have gone before us, and our peers. Our culture is built on quotations – an endless re-use and re-mix of ideas exchanged between people. While I support an artist’s right to earn a living, I have serious problems with the idea that a 3-second snapshot is somehow worth more than dozens hours of time put into code. I believe an artist has a right to be paid for their initial work, but not to be paid again and again in perpetuity for that work. If an artist wants to keep making money, they should have to keep doing new work, like the rest of us laborers do. The idea that a person can put work into something once and then feel entitled to keep making money from it forever feels unfair. It smacks of a world that values money over ideas. That’s a problem I don’t want to be a part of.

I feel that copyright should exist for a very brief period of time — just long enough for the artist to recoup their efforts before moving on to the next thing — not the 70+ years Disney has pushed it out to. How long should that period be? I don’t know – I suppose just long enough so that consumers don’t say “I’m not going to buy that record – I’ll just wait until it enters the public domain.” So… five years? Maybe. Why are we still battling over the hugely valuable Beatles catalog? The band isn’t even together anymore – that music should have entered the public domain decades ago.

Cc-Attribution To accept money for this snapshot would have felt hypocritical. A couple of friends worked on me last night, trying to convince me that the marketplace, not the creator, should set the value for the work. Their arguments almost worked. And of course the money would be nice. But in the end, I decided to stick to my guns and publish the piece on Flickr with the attached Creative Commons Attribution license, which requires nothing but credit to the artist, even for commercial use.

I’m sorry to learn that the photo is being used by Microsoft and the Boy Scouts, but confident in my decision that to accept money for it would make me part of the larger copyright over-extension problem. If I believe that ideas should be free, and that a photograph is an idea, then I need to back up that belief by NOT accepting money I don’t deserve for for an old snapshot that took close to zero time, effort, or inspiration to create.

At bottom, I don’t feel that Microsoft or the Boy Scouts should have to ask for my permission to use the photo to begin with. They should be able to proceed on a cultural understanding that that photo is nothing but a speck of dust in our cultural landscape, and know that they can use it as freely as we use the English language in our daily speech. The fact that they “have” to ask permission is exactly what’s meant by the term chilling effects.

So, Julie, please use the image in your film however you like. A line of credit is all that’s required. As it should be.

Music: Ornette Coleman :: Sleep Talking


The Copyright Royalty Board has recently decided to nearly triple the licensing fees for Internet radio sites like Pandora.

The new royalty rates are irrationally high, more than four times what satellite radio pays, and broadcast radio doesn’t pay these at all. Left unchanged, these new royalties will kill every Internet radio site, including Pandora.

savenetradio.org has been created to raise awareness and reverse the tide, before this vital medium is smothered in its crib. Please consider sending email to your congress-critter / reps, encouraging them to stop the madness.

Writing in the Free World

Jonathan Letham, author of the amazing Fortress of Solitude (one of very few novels I’ve read in the past decade), has come up with an interesting mechanism for handling the film rights to his latest book. Rights will go to the filmmaker who presents the best proposal. That person will pay Lethem two percent of the film’s budget, and will allow the rights to the novel to return to the public domain after five years.

It’s an arrangement that strikes a balance between guaranteeing some income for the content creator while simultaneously steering clear of the usual Disney-fied 75-year copyright stranglehold. The work becomes at once a vehicle for profit and a brick in the public conversation. “It’s based on the recognition that all works of art are, in a sense, a collaboration between artists and the culture at large.”

What Lethem is recognizing here is that the copyright debate doesn’t have to be all-or-nothing, that there’s a huge middle ground that can satisfy everyone.

It becomes one of those issues like, “If you don’t favor wiretapping in the U.S., you must be for the terrorists.” What I’m seeking to explore is that incredibly fertile middle ground where people control some rights and gain meaningful benefits from those controls, and yet contribute to a healthy public domain and systematically relinquish, or have relinquished for them, meaningless controls on culture that impoverish the public domain.

Some good riffing on how Led Zeppelin takes an uncopyrighted foundation (the blues), adds to it, and slaps copyright on it. Same for Brian Eno / David Byrne with their audio montage stuff. Taking it farther, if the blues was a patented form, Zep could never have existed. Loved these quotes:

“…participating in culture by making stuff is inherently a gift transaction and a commodity transaction.”

“If you make stuff, it is not yours to command its destiny in the world.”

Licensing models like Lethem’s don’t help for the 99% of artists who never see the light of day. But I like to hope that creative approaches to licensing like this one will become more common as artists acknowledge that what they do both borrows from and adds to the public dialog, and that all media needs to be quotable / reusable.

Music: Maline :: Lay Down