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Pure As the Driven Slush (Personal Journal)

August 12th, Two Thousand Two: "Oh, come on, it's just a picture." Or, Why Onkel Toms Hütte is Less Funny Than It Sounds.

This is the part where I bend your ear about copyright and artists rights. Which is a shame, really. I'd had my heart set on sitting and writing some poetry about a lovely evening spent catching droplet's of B's sweat in my mouth, but my head is too wrapped around these other issues to let that happen at the moment. So, it's storytime for the viewers at home today.

Our current U.S. Copyright law didn't have the greatest beginnings. It began with the printing press in England in the late fifteenth century, and was originated not to protect artists and authors, but on behalf of the British government to attempt to control the publication of books by creating a monopoly on publishing in England. That eventually lapsed, and better evolved into the Statute of Anne, which addressed rights issues of booksellers and printers, rather than feds. That act established the principles of authors' ownership of copyright and protection of copyrighted works (though it was for only a short term of fourteen years). It prevented that attempted monopoly, BUT still didn't serve the author or artist because the terms of copyright were very, very limited and by that act, once a piece of work was purchased by a printer, the owner of copyright no longer had any control over how that given work was used. But hey, it was a start.

In the late 1700's, the U.S. Constitution (Article I, Section 8, Clause 8) gave "authors and inventors the exclusive right to their respective writings and discoveries." Through the mid-to-late 1800's, several cases came to court which refined copyright, in some cases improving it, and in others, doing the opposite. One case, for instance, made it come to pass that copyright was not a naturally given right (pity that, as it should be, and is in some other countries copyright laws). Another, on the other hand, established Fair Use, which is (in my opinion) an important thing as it allows others to use creative works suitably without permission for important purposes. Harriet Beecher Stowe lost (!) an important case during that time when Uncle Tom's Cabin was translated into German and sold without her permission. The judge allowed for that theft, ruling against her, by saying that being put in another language made the work NOT the same work, and thus, not within enforceable rights and her ownership. The loss of that case caused a lot of valid fracas which helped begin revisions of the law over time for better artist and author rights. Over the next two centuries, U.S. Copyright law would come more into accordance with international copyright law, with Title 17.

That still doesn't help explain what this means:
©.

Or this:
All rights reserved.

So, for the folks in the nosebleed seats, let me give it a whirl.

When you see that symbol (or even when you do NOT see that symbol, or a statement of copyright, following provisions the Berne convention, which nearly all major nations currently follow in which that symbol or statement need not be there legally to establish copyright) on ANY creative work, published or nonpublished, it means it is protected by copyright law. One doesn't have to file for copyright to have that protection, though without actual filing, an artist or author is not usually entitled to major fiscal damages from infringement. The only exceptions to a given work NOT being copyrighted upon creation is when an author or artist purposefully puts it in the public domain and states such, when after a long period of time it becomes public domain, or in certain cases of work-for-hire. If, outside Fair Use, you use a work without the artists or authors permission you are in violation of copyright law, and even small commercial copyright violations are often felonies. Fair Use is a lot more limited than most people seem to think. Here's the short form of the Fair Use provision:

§107. Limitations on exclusive rights: Fair Use: 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.

Insofar as the usual instances on the 'Net that drive me utterly apeshit, Fair Use is not what's going on. Using someone's written or visual work without permission to adorn your personal website, as background or supplementary images, to show it because you like it on a webpage or by passing it around in email and so forth ain't Fair Use, baby. Let's say someone likes an entire song which is not presently in the public domain (some are -- Pete Seeger, for instance, has always purposefully put his work in the public domain). Reprinting the lyrics entire as a whole journal entry isn't Fair Use. It MAY be Fair Use, however, if you reprint some of those lyrics in the context of a large work on them, or create something entirely new with parts of them, though if that is merely for the purposes of entertainment, rather than education, you're likely not within the boundaries of Fair Use without having asked for permission.

A lot of folks seem to be very confused by copyright law, or if not confused, deem it unimportant or dismiss it altogether. But it's a simple premise, really. Let's play it with an analogy (though one that, I give you, doesn't work well in countries with squatter's provisions regarding abandoned property): I own some land (my mind, my tools of creation, where I can publish). I build a house on that land (my creative work). Now, once that house is built, there are both laws as well as basic ethos which govern how others can use that house. People cannot lawfully or ethically just walk in uninvited unless I leave the door open and invite them in (publishing or showings). And in the event that I do leave the door open, or invite guests in, I'm allowed and entitled to put limitations on that. Those might be that they can only look at my rooms and walk through. Or that I expect a certain amount of my rent paid for the privilege, or even just a basic thank-you. Or that they may, say, use a portion of a room -- without my express permission to do so, yet still only when I have an open house -- not for generating profit, and only for the purposes of education, study, criticism, news reporting within a far larger body of work (Fair Use). But a guest may NOT simply take up a room in my home, take things out of it, and show them in their home, in whole or in part as is, or adapted within easy recognition, without my express permission (copyright infringement), and if they do, they are not only breaking the law, they are being really shitty guests. If they do as such, they can be held responsible for breaking that law and suffer the consequences. In addition, if I have a specific deed to my house and rooms in it (filed copyright vs. Berne Convention Provisions and such), I can not only hold them responsible for breaking that law and having ill manners, I am entitled to far greater financial recompense. Were creative work literally a house, most people would have no trouble whatsoever understanding both the law and the ethos of the matter. Then again, some people just have no idea how to be decent houseguests.

And others aren't even that: they're those who don't just enter our homes uninvited, they rob them. Which not only isn't legal, but which most of us would agree, is a really horrible thing to do to someone.

In my mind, there's the rub. If most people were just decent houseguests, people who appreciated and respected our personal spaces (even when we make all or part of those spaces selectively public), we wouldn't even NEED these laws. If someone didn't look at a piece of artwork and say, "It's just a picture," or at a poem and say "That's just a bunch of words flopped together," but recognized those things are creative work, work that involves oft immeasurable amounts of time, energy, inspiration, tools, craft, skill, patience, sacrifice and bravery to create, and treated it as the gift which it is, with the respect and reverence one should give to gifts and to art (regardless of the level of quality or value perceived by any given viewer), we wouldn't need these laws. And I wouldn't be blathering about this here. Nor would I, or any other person, have moments where we felt we live in a world where we cannot give and share the gift of our art as freely as we'd like to because it's treated like garbage. Or that our creative homes are not safe from robbery unless we put bars on every window and locks on every door and turn our homes into prisons. new stuff
queenie: white lace panties tiara sparkles princess teddy bear pink femme play ageplay masturbation vibrator pale skin girl redhead curves healthy nudes
Photography: 08.09
memberssamplesign up

I recognize that's something of a dramatic statement, but it's also coming from the heart as well as from my mounting annoyance over the years in dealing with these conflicts. It's coming from the part of me that feels more and more like I can share less and less of my work safely and generously in the public sphere; from the part of me that's discovering that more times than not, I can't ask reasonably or politely that my work and my rights to it be respected and expect those infringing it purposefully or accidentally to respond unless I get my lawyer or their ISP or their college or publication involved rather forcefully. Which is just bloody well depressing.

I've had those who I have to send cease and desist notices to (usually well after I try the "nice letter" tack of simply asking that they kindly remove my work, or heck, just ask for my permission, which for the most part, I tend to give pretty freely within certain limits), say that I was being stingy with my work, that I wasn't sharing it because I wouldn't let them reproduce it -- without my permission, even -- for their own purposes. Of course, if I wasn't sharing it from the onset, they wouldn't seen or read it to begin with and that entire scenario wouldn't exist. I've heard people argue that creative work must by its nature have no owner because talent is a gift, and those of us who are lucky to have it need to give it to those who aren't. As if talent alone is enough to get the work done. Would that it were. If that's the case, does that mean that those with natural talent in accounting or housecleaning need to come over and work for me for free because I lack those talents? That'd be swish, eh? These sorts of arguments strike me as eerily parallel to the dude who walks up to a woman in a bar and suggests that since she's there, looking fabulously sexy in a body nature alone gave her, in public, and slept with a guy from that same bar last week, that she owes him the same privileges whether she likes it or not. And to be honest, I've no doubt that some part of that mindset comes into play when the work we're talking about is erotic artwork of women. Gross.

I know that my colleague and friend Nicholas and I disagree on some elements of intellectual property, both in terms of law and in terms of ethos in some regards (I find what he has to say about it very interesting counterpoint, while in some respects, we feel identically). And likely, a lot of us have a variety of differing opinions, both about our own work, and about the laws and ethos in general. But the beauty of the thing is that we get to have those differing opinions and handle it as we'd like. I can opt to be protected by copyright laws and all they entitle me, and another author or artist can decide to make their work public domain and opt out. I opt in on the whole banana for a few primary reasons.

1) I am a working artist. It is not a hobby or a sideline, it is what puts (or doesn't) food on my table and a roof over my head. The way I have my revenue sources set up, for most of my work, my revenue would be diluted if that work appeared everywhere and anywhere. That is especially the case when it comes to independently produced erotic material, and more so when it is digitally published than published in other ways.

2) I want a say in how my work is presented, especially when I AM my work. In other words, in regard to the self-portraiture and photos of me, while I'm well aware that a given person can look at a photo and see nothing but a piece of ass, I'm not open to having a photo plopped up on a page or on Usenet titled "Piece of Ass," if that was not my intent in the work. Part of what my work is is what it is in context, and given the genre I work in, and the state of our culture and sex, it's presently important to me that my work is presented in context, not outside of it. That's a big part of why I'm okay with doing some of the work that I do. That's a big reason why, for instance, on this site, the photography and the journal lie within one site, and are not two separate sites. Context is important to me.

3) Because art is both a gift and not a gift, all at once. When I was being trained as a musician growing up, I refused to be paid for performing in cash, well through college (being paid in beer was okay, though, which is good, because you'd be amazed how many bars ONLY pay in beer). However, growing up, I didn't have to pay for my instruments or my lessons. And obviously, natural talent I was given for free. Then I had my first dulcimer break on me and needed a new one. And I couldn't perform for months until I could afford a new one (at what seemed a huge cost then, but minuscule now at but $300). In the interim, I couldn't give that "gift," to anyone, whereas had I accepted payment, I could have easily bought the new instrument and keep on giving via performance.

Creating and "giving" the gift that is creative work, see, isn't free, and I'm not even talking about my time. My labor excluded, over the course of one year, my basic expenses and overhead for bandwidth, supplies, computer costs and other equipment for what I currently do run me about $10,000 per year. When I can't net at least that sum, as well as a sum that enables me to live somewhere and eat and care for myself, I can't create new work. When I struggle to net that sum or can't care for myself, even when I try to create new work, it's often substandard work. I can't give that gift without what I need to create it, and talent and creativity and everything else aside, most working artists like myself so BARELY net their most basic expenses that sharing our work is very much a gift, and often one that is really quite generous, especially when our work can be viewed without purchase. And especially when so many people don't even say a fucking thank you, but take those gifts completely for granted.

That's not to say it's all philanthropic. At least, I know for me and most of my fellow artists, it isn't. Most of us (if I can speak for us) create because in the same way a person gets if they don't eat, we get when we don't create: cranky, crabby, crampy, hollow, hungry. We create because we feel we must, because like eating or sleeping, it feels imperative to our very existence. Even sharing that work isn't usually all just to be nice and generous either: a good lot of us (myself included) crave feedback on our work, crave viewership; we want to get it out there for various reasons which are about us, not about the viewer or reader alone.

But I think -- especially in a world that seems to, with each passing century, become less creative and more industrialized -- it benefits all of us to enable artists to create. I think it does that even when the work is never shown to a soul, but far more so when it is. And part of enabling creative work is respecting not just the work itself but its creator, even though a lot of the time, we are our work can become inseparable.

For me to be enabled to do my work, I need to have enough respect and reverence for my "gifts," and that includes not diluting my revenue sources or the fiscal value of that work. That includes allowing me to choose to publish my work where and how I want to within my rights, both legal and ethical. Most importantly, that includes having house guests who treat my home and its rooms and extensions with care when I opt to let them inside it, and all the better if I don't have to enforce that courtesy with laws, but if it is extended to me with the same generosity and kindness with which I opened the door to it.

What it all boils down to, really, is that we remember the difference -- not just practically, but emotionally -- in how it feels to invite respectful, courteous and friendly guests into our homes, and in how it feels to come home and find our doors knocked off the hinges, our things scattered everywhere, our most sentimental and valuable possessions stolen, and sometimes irreplaceable.

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