The Social Scene, MOCA (2000)
This past week, I discovered that a complete essay of mine, “Diane Arbus, Lee Friedlander, and Garry Winogrand at Century’s End,” had become available online at Doug Rickard’s blog, AmericanSuburbX: Photography & Culture. Commissioned by the Museum of Contemporary Art in Los Angeles, this 3600-word essay had appeared originally in the catalogue of that institution’s exhibition The Social Scene: The Ralph R. Parsons Foundation Photography Collection, published in 2000. (For a description of this survey show, click here.) Copyright to this essay, and all subsidiary rights related thereto, belong to me.
Since the “fair use” exception to the copyright law does not permit unauthorized publication of an entire essay under any circumstances, I sent Mr. Rickard a query:
What’s the basis for your publication of my copyrighted essay, “Diane Arbus, Lee Friedlander, and Garry Winogrand at Century’s End” at your blog?
He replied as follows:
Hi A.D.,
I thought that it needed to be seen rather than buried somewhere in an archive.
Let me know if you would prefer for me to delete it and I will do so or I can add any desired links if that is preferrable.
I responded thus:
I might well agree with you when you write that “I thought that it needed to be seen rather than buried somewhere in an archive.” The appropriate way to deal with that perception is to contact the copyright holder of the work and propose to put it online. To which the copyright holder may or may not agree. Republishing it without permission is presumptuous, to say the least.
That’s also the only legal way to publish it. What you’ve done is clear violation of copyright — and I suspect that much if not all of the content of your blog, images no less than text, appears there illegally. This reflects a bizarre sense of entitlement to which I don’t want to contribute in any way. So take my essay down immediately.
What will happen to you and the blog is that you’ll run into someone not nearly as generous as me, who will hit you with a suit under the Digital Millennium Copyright Act, which makes you vulnerable to fines of $250K per infraction. They’ll shut you down, and do you real financial harm, whereas I’ll just retrieve my essay and caution you to respect the legal IP rights of my colleagues in the field by securing permissions before you put anyone’s materials online.
And Mr. Rickard replied:
Allan, I sincerely appreciate your concerns and will delete your piece ASAP.
In term of the content, it is both joint driven by Author/Photographer and the site and also republishing with links to content authors included – also to Amazon, etc. A large portion of the authors and photographers are working with me directly (Robert Hirsch, Shelby Adams, Tanyth Berkeley, Gil Blank, Danny Lyon, Roswell Angier, Todd Hido, JH Engstrom, Hally Pancer, Pieter Hugo, etc) and many are not. The site at its core is a resource for the entire photographic community and also and an educational vehicle so I have approached it as such and consequently have been more liberal then if a commercial venture – that would of course necessitate a different and financially driven arrangement. I view this site and it’s contribution as a win-win for most of the photographers and content authors and clearly for the photographic community as a whole. Honestly, all but a few individuals have seen it that way. I think that the foundational contributors (“founding fathers”) to photography as a medium need to be bridged to the current crop of contemporary artists and that a narrative both visually and content-wise needs to occur. The site and it’s structure are well suited to provide such a bridge albeit, a subjective one and with a sharp eye toward editing.
Hope all is well.
•
Mr. Rickard did indeed delete my text rapidly from his site. So my own complaint is resolved. However, I remain troubled by the “bizarre sense of entitlement” that allows this web publisher to assume that his sense of the importance of making something available to others overrides his legal obligation to respect the laws governing intellectual property. This troubles me especially because it’s self-serving, protestations of creating “a resource for the entire photographic community and also an educational vehicle” notwithstanding. Mr. Rickard is inarguably drawing traffic to his blog by posting pirated content there. He’s also using the reputations of these unwitting contributors as a tacit endorsement of his blog, since the reasonable inference of any visitor there is that these writers’ and photographers’ works appear at this blog with their makers’ approval. In short, Mr. Rickard derives personal and professional benefit — in the form of web traffic and credibility — from his unauthorized use of content created by and belonging to others.
So I’m concerned for those of my colleagues whose copyrighted works also appear illegally at this blog because they’re among the “many [authors who] are not . . . working with me directly.” Blather about “the foundational contributors (‘founding fathers’) to photography as a medium” aside, I don’t find it an honor to have someone heist my IP — and most of my colleagues feel the same. Generally speaking, we prefer to receive formal written requests for such usages, and to make our own decisions regarding where and when to put it online. That’s a basic professional courtesy in the publishing world, to which Mr. Rickard appears oblivious.
Let me be blunt about this: Copyright violation and other infringement of IP rights is never — I repeat, never — “a win-win for . . . photographers and content authors and clearly for the photographic community as a whole.” It’s theft: rude, arrogant, selfish, and unjustifiable. It sets a bad precedent generally; moreover, in the case of a given individual, not pursuing such infringement can void protection of one’s copyright at a later date.
As a freelance creator of intellectual property I oppose violation of my own copyright and that of others when it’s committed by someone running a commercial emterprise whose motives are clearly venal, as in the case of the Paul Kopeikin Gallery. I oppose it no less when the perpetrator claims altruistic motives, marveling as always at the selflessness with which such noble souls sacrifice others for their cause.
So I consider Mr. Rickard a thief, just as I consider Paul Kopeikin a thief. Both stole my work. I don’t see any difference between them, despite the fact that Mr. Rickard appears to mean well in terms of the overall purpose of his blog.
I forced Kopeikin to remove from his website dozens of essays (all of them pirated) by some three dozen other authors. I hope Mr. Rickard has the decency to strip out all content from his site not specifically licensed to him by the copyright holders. I hope my colleagues from whom he’s boosted content, writers and photographers alike, demand that their work gets removed from his blog. And I hope the photography community lets this publisher know, in no uncertain terms, that they disapprove of this “service” provided by him at the expense of others. To send Mr. Rickard your opinion, click here.
Allan,
Of course you are right, within your rights, and even correct. Mr. Rickard is part of the herd who believe that what they believe trumps the law, if indeed they know the law. It seems authors and so-called content creators would be familiar with © law, fair use, etc. Some are but think “everything is different” in the virtual world. He is the intellectual counterpart to people driving expensive cars and never using their turn signals. Keep up the good fight, Sir.
A. D.,
In addition to being absolutely, totally, and completely spot-on, you are clear, direct, specific, articulate, knowledgeable, instructive, convincing, and even kind. You have always been one of the leading statesmen in our field.
Unfortunately, Mr. Rickard did not immediately acknowledge his inappropriate and unwelcome business plan. His offer, “to delete it … or… add any desired links” does not show remorse, a real understanding of his violation, a respect for the work of others, or an actual obligation that he now has to specific parties and to our community in general.
Your essay is in the MOCA exhibition catalog & therefore available for anyone to read. Mr. Rickard would have done a better service to all by writing a review or description of the catalog, provided a link to MOCA’s bookstore, and sold people on the idea that they should buy the book & read your essay. MOCA could definitely use the money. He also should have been in touch with you, & checked out all of the possibilities of drawing attention to your creative output, as well as the creativity of others. Now THAT would be a great service, which authors and content creators could celebrate.
Thanks for your supportive comments, G. Ray. Yes, Mr. Rickard had several options available to him. He could have asked me for permission to publish this essay at his blog (to which I might have agreed). He could have suggested that I put it online at my own website (which I’d certainly consider). Or, as you propose, he could simply have provided the bibliographic citation, with links to the MOCA bookstore and/or Amazon, to get his readers to it — plus his own commentary on why he felt this essay had significance.
I’d consider any and all of those actions appropriate and professional. And adult. Deciding not to contact me (and I’m hardly difficult to find online), and instead following his urge to see this text online, suggests problems with impulse control, perhaps traceable back to childhood. And offering a self-justifying rationale with no note of apology doesn’t reflect a mature temperament. Another reason I didn’t want to reward bad behavior by accepting the offer of “some links” to my own sites as compensation.
I find blogs that have a responsible relationship to content created by others, and I’m happy to link to them. Right now, Mr. Rickard’s project doesn’t come near meeting my standards.
Your rights are important, and your dealings with the issue fair, considering the legal recourse you have.
However, to suggest that the copying of your essay ‘suggests problems with impulse control, perhaps traceable back to childhood’ seems a bit steep!
For alternative takes on copyright / work availability, see for instance, the excellent Transformative Works and Cultures – as well as the related open journal systems.
Best, Sean.
I beg to differ. Mr. Rickard wrote, “I thought that [your essay] needed to be seen rather than buried somewhere in an archive.” So he OCR’d it and put it online, without even making an effort to contact me. That’s impulsive behavior, by my lights. (I’m discounting the possibility that it was deliberate, conscious, purposeful breach of copyright, the only alternative. From his emails, he strikes me as a naive twit, not meaning any harm even when he’s doing some.)
Clearly, by his own admission, Rickard’s had that same impulse with a bunch of other stuff up at his blog, and has not had the ability to control his urge to incorporate the IP of others into his website. When he sees it and admires it, he takes it. So let’s call a spade a spade. This is virtual shoplifting. It does indeed manifest poor impulse control, and (though I had tongue in cheek when suggesting this), that characteristic usually does trace back to childhood.
I’ve looked at the site you recommend, Transformative Works and Cultures, with its advocacy of a Creative Commons approach to internet publication. And I’ve looked at TWC’s board, right there on the splash page below the statement of purpose. Here’s what I see: 38 tenured academics and one person listed as “independent.” Does it surprise you that vastly more people safely ensconced in academe with teaching sinecures advocate giving away one’s writing than do professional working writers, by a ratio of 38 to 1?
Doesn’t surprise me. Most academics give their writing away as it is; academic presses offer little or nothing in the way of cash advances for books, academic journals pay nothing for articles (and often require actual transfer of copyright in return for publication, a reprehensible practice). The writings of college and university teachers buy them job security in the academic world. If they want to swap their copyrights for another suck at the academic teat, that’s their choice.
This particular TWC cohort will get extra cred in academe for setting up and overseeing this project. The academics who sign on as peer reviewers will get extra cred for that service. The academics who contribute texts (and I guarantee you they’ll almost exclusively come from academics) will get extra cred for publishing in these online journals. All very cozy. Excellence virtually guaranteed — depending, of course, on your definition thereof.
My writing pays the rent. I’ll decide when to give it away, and what platforms (including this one) to use for that purpose. Glad at least to have you acknowledge that my “rights are important,” though you don’t sound at all happy about it.
I fail to see how, from my stating that ‘Your rights are important, and your dealings with the issue fair considering the legal recourse you have’ implies that I am unhappy about such rights, or your enforcement of them.
I fail to say how this breach (amongst others) of your rights, or, as you also term it ‘virtual shoplifting’, relates to childhood problems.
My mentioning that there are other approaches to copyright beyond your own was offered in the interests of wider debate.
My tongue is not in my cheek.
Best, Sean.
Some people might actually condemn Doug Rickard for violating my copyright and the copyrights of numerous other authors and photographers. Your response is to acknowledge that my “dealings with the issue [were] fair,” and then to propose that I should consider “alternative takes on copyright/work availability.” This assumes that I haven’t considered them. “There are other approaches to copyright beyond your own,” you now write. Really? Gee whiz! Thanks for bringing me up to speed. Now, if you will, point me toward the “other approach” endorsed not by academics who write occasionally, securely lodged in the educational bureaucracy, but by full-time working writers who make their livings by generating intellectual property.
I welcome the “wider debate” you solicit. Let’s start it off with this question: How is A. D. Coleman to earn a living by producing the writing that his field widely acknowledges as a significant contribution to the literature, as demonstrated by the frequency with which he’s quoted by his colleagues in academe and his essays assigned by them to their students? I look forward to your cogent answer.
Gee whiz! I did not suggest that you adopt a different means of copyrighting your “significant contribution to the literature.”
I did not state that you should consider “alternative takes on copyright/work availability.”
I did not assume – and I do not state – that you lacked knowledge on this issue. All of this is clear in my initial post.
All the best, Sean.
It appears I’ve somehow mistaken the thrust of your recommendation in your initial post: “For alternative takes on copyright / work availability, see for instance, the excellent Transformative Works and Cultures – as well as the related open journal systems.” If so, my apologies.
I enjoy reading American Suburb X because it displays a huge variety of photographic writing which I would not have access to otherwise. I think your assumption that he publishes this material for personal gain is incorrect. His main motivation seems to be to create a central clearinghouse of photographic essays to which all have access.
In regard to copyright and permission, you have a right to be pissed off. He republished your essay without permission. That was illegal. You asked him to remove it. He complied. For you to go beyond that and speculate about strange Freudian motives seems silly and petty.
I don’t know if Rickard’s received permission to publish most of what’s on American X. I suspect not. But I am fairly certain that if he did not republish that work, it would be forgotten and buried. Some librarians or rich book collectors might have access to it, but for the most part it would be completely inaccessible. For me and I suspect many other photo enthusiasts out there, American Suburb X is the only way we’ll see that stuff. You can suggest that someone buy the old MOCA catalog to see your essay. Perhaps it is still in print, but if so I think it may be difficult to track down, and if so at what price? Much of what is on American Suburb X has long been out of print. Without that web site, it would be out of reach.
You could make the argument, so what? Let it go out of print. Leave it up to the author to decide when to revive it. Legally correct, but the result is a much thinner intellectual environment. What if scientific discourse ran by the same logic? Let scientific papers go out of print. Only the authors or those with adequate resources would have access. It might be sound according to copyright law but all scientific inquiry would be stunted.
As an impartial observer and someone who really enjoys reading American Suburb X, I’d encourage you to liberalize access to photographic history. You’ve contributed greatly to that history. I see your arguments against Rickard but I’d encourage you to cut him some slack.
When I was growing up, it was common — due to the joint influence of Drs. Sigmund Freud and Benjamin Spock — to ascribe a wide variety of misbehaviors, from the minor to the extremely serious, to “poor toilet training.” I intended my attribution of Rickard’s cavalier attitude to intellectual-property rights to this causal factor as a joke. Apparently the cultural reference no longer clicks, at least not among those considerably younger than I. So it goes.
I couldn’t care less about Rickard’s motives in stealing other people’s IP. Nor your motives for rationalizing your enjoyment of the access he provides you to that stolen property. You write, “You can suggest that someone buy the old MOCA catalog to see your essay. Perhaps it is still in print, but if so I think it may be difficult to track down, and if so at what price?” Obviously you didn’t take the trouble to test your assertion; you can buy a copy of the book at Amazon.com for $6.50 plus shipping. You don’t have to have the resources of a “rich book collector” to afford that.
Of course, there may be harder-to-find and pricier items in Rickard’s inventory of looted property. That still doesn’t justify his taking it. Let’s apply your rationale to another form of property:
Your neighbor owns a marvelous custom-made car, one of a kind. He just lets it sit under wraps in his garage. This deprives all the world’s car lovers of the experience of driving it, seeing it in motion, and otherwise enjoying it. This doesn’t seem right to you. So you take that car from his garage and, generously, make it available to anyone who wants to use it, free of charge.
After all, this is is the only way they’d get to experience that car. Without your intervention, it would be out of reach. You could make the argument, so what? Let it stay in the garage. Leave it up to the owner to decide if and when to drive it, who to lend it to, whether or not to charge for its use. Legally correct, but the result is a much thinner automotive environment. If the owner complains, you would encourage him to liberalize access to automotive history.
I assume you’re not so foolish as to make that argument in relation to tangible property, although it’s exactly the same argument you make in defense of Rickard’s multiple thefts. From which I conclude that you don’t consider intellectual property to be true property. Fortunately for those of us who produce IP, the legal system disagrees with you.
By the way, scientific books and journals go out of print all the time. They don’t vanish from the earth; they remain available in libraries. When they’re published online, it’s almost always via pay-per-view or subscription-based websites. (See, for example, the Wiley InterScience and JStor sites.) Generally, you can access these legally at no charge to yourself as a user via college and university libraries and/or public libraries, which pay the subscription fees that enable your access.
The only inconvenience to you is that you may have to go to the library to make use of those subscriptions. I see that as a much better solution than allowing someone to steal the work of others on behalf of scientists. Notably, the scientific community seems to concur; they don’t complain about this arrangement. Not only is it “sound according to copyright law,” but “all scientific inquiry” has not in fact been “stunted” by this procedure.
Your use of this example does not make you look good. And, since you could have informed yourself on this score with a simple Google search for “scientific journals online,” you make yourself look even worse. This is definitely not a good idea.
Instead of using a custom-made car, consider a famous painting. The Mona Lisa or The Milkmaid. What if the owner of such a painting kept it in his garage and never showed it? That would be fine legally and perfectly within their rights. But at what cost to society? At the very least a digital version of the painting might be released out into the world to placate curiosity.
For scientific journals there are systems in place to maintain their accessibility. Go to Willy InterScience and you’ll find PDFs of thousands of old papers. Any scientist who wants to dig up old papers can presumably do so with a mouseclick.
For photography, no such system exists. Rickard’s site is an attempt at a clearinghouse but it’s far from ideal. If you’re curious to read an out-of-print essay or photo book, where do you go? Maybe you live near a university or good library. Otherwise, tough luck.
I would welcome a central system for photography similar to what exists for scientific research. I don’t know how the financial or intellectual issues would be resolved. Perhaps it could be subscription based. I suspect the obstacles are insurmountable for it ever to happen. Too many cats to herd. But just imagine such a resource. Wouldn’t it be great?
But no, you’re probably right. Better to let old essays sit unread on some dusty bookshelf.
Countless works of art — including not just visual art but literary works and musical compositions — reside in private collections around the world, inaccessible to all but their owners. Others live their lives unavailable to any but the keepers of the keys of institutional collections, such as the masterpieces of modernist art confiscated and held by the rulers of the Soviet Union during its era. Others remain inaccessible due to thorny and even irreconcilable legal dispute over ownership and rights. And still others can’t be seen at all (or can be viewed only by researchers who visit the site where they’re held, who are forbidden from copying them or quoting from them) due to restrictive clauses in their makers’ wills, libel laws and privacy considerations, and other reasons.
These are simply facts of life. Society seems to get along reasonably well, or at least no worse than usual, without unlimited access to all this material. I might well agree with you that, except in cases where someone’s privacy would be violated, it would be nice of the owners/keepers to make some digital facsimile of the work available for us to consider. But that’s their choice to make, not mine, and not yours, and not Doug Rickard’s, according to the laws of just about every country in the world.
What I see at Wiley InterScience (and JSTOR) are exclusively purchase/subscription options. Maybe you’ve found something there I haven’t come across yet. There are a few online models of open-source, free-access journals; you’ll find one such at Transformative Works and Cultures. So far as I can tell, the web staff, editors, jurors, and contributors are all academics, with no working writers among them. I don’t say this to disparage them, or their work on this project, or their writings; just to make the point that they will all get various academic benefits from participating in this project, and none of them depend on revenue from their writings to pay the rent.
I’m delighted to hear you assert the following: “I would welcome a central system for photography similar to what exists for scientific research. I don’t know how the financial or intellectual [property] issues would be resolved. Perhaps it could be subscription-based. I suspect the obstacles are insurmountable for it ever to happen. Too many cats to herd. But just imagine such a resource. Wouldn’t it be great?”
I can indeed imagine it. Indeed, I can envision it, not just in my mind’s eye but right there on my laptop screen. That’s because I created it in prototype form, in such a way as to resolve (at least potentially) the financial and intellectual-property issues involved. It’s called the Photography Criticism CyberArchive; I launched it in 2002. It contains hundreds of texts by dozens of authors, including Daguerre, Talbot (the complete Pencil of Nature), Emerson, Hartmann, Stieglitz, and others, right down to the present. The obstacles are real but hardly insurmountable. And, as you propose, if fully developed and steadily expanded it can be (in my humble opinion) “great.” I haven’t been able to grow its content at the pace I hoped to, due to lack of subscribers and/or a sponsor whose support would enable me to reduce subscription rates or even make access to it free.
Your name is notable by its absence from the subscriber’s list (Doug Rickard’s too). I’m sure you’ll rectify that oversight promptly. Perhaps you’ll encourage others to subscribe, individually or institutionally. Maybe you’ll bring me the sponsor(s) the project needs to subsidize its growth. Maybe you’ll write to Jeff Ward, who insists that I’m a “luddite” who doesn’t “‘get’ the internets” [his plural] because I expect compensation for this project for me, the authors from whom I license work, the people to whom I outsource scanning of vintage texts, and my webmaster, and therefore refuse to give him and you and everyone else free access to it. Maybe you’ll tell him you think he’s wrong, and that he should welcome this effort as enthusiastically as you do.
But maybe you won’t do any of that. We’ll see.
I feel sick. I’ve been enjoying American Suburb X a lot lately, and I never considered the possibility that the content might be stolen. It doesn’t matter to me whether his motives are profit-driven or altruistic — it’s wrong, and I personally don’t want to read stolen content.
Based on my experience, I now assume (sigh) that anytime I enter a content-rich site that includes extensive texts and/or images by someone other than the site’s main editor/author/blogger, I’m probably in the presence of stolen IP.
Having worked as a content producer since 1967, and thus as a licenser of my own rights for over 40 years, I know the amount of paperwork involved simply from that end. Add to that the various projects I’ve undertaken with myself as editor over the years, with the Photography Criticism CyberArchive not least among those, which have taught me what it means in terms of time and effort to license rights from others. So my nose for a scam has had some training.
Tell-tale signs (not infallible, but probable cause): No authors’ copyright notices on the texts and no photographers’ copyright notices on the images. No editorial notice indicating the copyright status of the work presented, the rights licensed, the contact info of the content producers/copyright holders. No bio notes. No editorial indication of how the site acquires work, what rights it licenses, what (if anything) it pays for content, how to submit work . . . and so on.
And minimal info about the editor/publisher. In this case, aside from the college he attended, Rickard doesn’t tell us much — except that he’s a “son of a preacher born to a preacher’s son.” Looks like he mostly skipped Sunday school, and slept through the sermons on the Eighth Commandment.
interesting read. i had a similar experience recently:
http://benrobertsphotography.wordpress.com/2009/09/28/gup-magazine-feature-my-work-but-dont-let-me-know/
Another thoughtful commentary from Ben Roberts — this one directly concerning Doug Rickard’s blog, AmericanSuburbX, and quoting from my post here — appears in this April 10, 2010 post at his own blog, “If At First: notes on being a photographer.”
Coming late to this, but on JSTOR, online journals etc., just about anyone with a public library card can access extensive online databases of journal, magazine and newspaper articles for free (or at most the cost of membership of your local public library) from the comfort of their own home computer/laptop.
As an exercise I just went to my local library website and logged on to only a couple of the databases and found dozens of articles by A. D. Coleman, all available for download as pdf’s or other formats.
Colleges, universities, public libraries, and other institutions subscribe to what are know, generically, as “content aggregators” like JSTOR (academic journals) and Lexis/Nexis (periodicals such as newspapers and magazines). Those who access these archives via their student or faculty access to school libraries, or their public library cards, do so legally. And the institutional subscriptions to those services are also legal.
But that doesn’t mean the content at those sites has been aggregated legally. Prior to the advent of the web in the mid-’90s, few publishers asked for writers to license or transfer electronic rights to them; they contracted for print rights only. When the web emerged, publishers often assumed that they enjoyed digital rights to what they’d published in print. In its notable decision on the landmark Tasini et al v. The New York Times case, the U.S. Supreme Court set them straight.
Despite that ruling, many content aggregators continue to publish copyright-protected material licensed illegally to them by assorted publishers. I police this to the best of my ability, but I know that some slip through the net I cast.