How Photographers Can Make Money without Copyright
[From Eyesometry (2011)]
Early on in the process of forming Eyesometry, my photography company, I did a great deal of reading on a number of photography-related topics. One book I read on the subject of business practices for photographers had an unusual chapter on copyright. It was not unusual for its defense of copyright; most photographers favor it. But what caught my attention was the honest confession by this author of what copyright actually is. Copyright, he wrote, is a grant of monopoly by the government.
I have never seen an author in favor of copyright actually admit so honestly what it is they are supporting. I appreciated the author's honesty; however, as I began to ask myself whether I also support the government granting others the "right" to a monopoly, I realized that I did not, even if it meant that I might financially benefit from such a monopoly. In essence, copyright is a form of protectionism. It uses the force of government law to restrict the rights of others to act peacefully when they are doing nothing to harm anyone else. A retention of a copyright on something that is reproducible is a means of controlling someone else's actions over themselves and their property.
The question is why? Where is the fundamental dishonesty in such an act that causes it to be a crime? Why is reproducing and selling a copy of The Little Mermaid by Hans Christian Anderson legal, but reproducing a work by a copyrighted author not legal? It can incur prison time.
The answer is in the fact that copyright protects the profits of those who produce such works. Really it protects profits that they would otherwise not realize. Now don't misunderstand: I am all for profits; in fact, I am an unapologetic capitalist — but I am also an honest one. Profits gained by government law have little to do with capitalism and more to do with protectionism. Protectionism is a scheme for extracting by means of government force more profits than would otherwise be realized in a purely free way. Honest people in my view cannot embrace such a regime.
This has direct implications for the photography business, since photographs, especially in the digital age, are extremely reproducible. Many photographers have bemoaned this fact and have even been slow to embrace digital photography as a result; however, in my view this a great advantage, as I will explain later.
For now I want to stick with the issue of copyright, and if you have not gotten the hint by now, let me clarify: I do not support copyright laws even for my own products and business. I will make my case briefly here, but there is a good body of work to read further if you're interested.
Let's change the subject matter and see if that helps to clarify. Let's suppose for a moment that I was selling pencils rather than photographs. You came to me and asked for a dozen pencils, which I sold to you but then disclosed to you that according to the law you cannot use those pencils on Tuesdays, or any other day or time that I determine. So in other words, I am selling you something but then telling you what you can and cannot do with what ostensibly is now your property.
After purchase, are the pencils your property or are they still my property in part? Under such a law, the seller of the property "retains some rights" or "reserves rights" for themselves over the property. I did not do this by voluntary agreement asking you to sign a contract and agree to such terms, but I did this by government decree, a law I may have in fact lobbied for as such a law is financially beneficial to me.
Perhaps by limiting your use of the pencils, I can sell you some more pencils that are "authorized" for use on the black-out days. Such a scheme is obviously dishonest when described in these terms but not when we speak of similar restrictions in terms of copyright. The reason why is that we have been conditioned by a long-standing tradition of copyright to think that it is perfectly fine and is simply normal business practice. However, a new generation, one brought up with technology that allows for the easy free flow of information, is beginning to question the status quo, and rightly so in my view.
So for Eyesometry, the company, we have a problem to overcome because of the way copyright law works. Although we would have to claim a copyright in order to enforce it in court, copyright is still in force as soon as a professional photographer takes an image. There is some gray area here about how to enforce it, and the whole thing becomes very untenable.
The current system of licensing that is commonly used by the copyright holders offers offers a very good solution without any need for campaigns, letters to congressmen, or lobbying. A copyright holder, can as it turns out, voluntarily waive their copyright via the means of license. While it is rare to find such a generous license — most licensing is rather restrictive — the copyright holder can write whatever license they choose, or they may use an existing licensing scheme.
Fortunately for all there exists such a licensing scheme that already has an established legal precedence and is commonly used in a number of areas. Creative Commons licensing provides us with an established legal option of licensing that gives such generous permissions that they effectively nullify the copyright provisions. I could have had a lawyer write a custom license, but it helps to already be able to access a license scheme that has a track record and can be adapted for our uses.
So what does all of this mean for the client? Let's say for instance that you hired Eyesometry to shoot your wedding. Part of what we offer clients are digital files that can be downloaded from a website. You can get various sizes up to full resolution. Each image file comes with a Creative Commons license when you purchase it that gives you the permission to make copies of that file and share them with whomever you like. That's what CC licensing does, it is permission to share, or to copy, and that is what copyright restricts.
The only caveat really is that you give credit to the original creator, in this case Eyesometry, but otherwise if someone asks for a copy of that file you downloaded, you are free to give it to them. The reason I have taken this approach is simple: If you purchase a product from me, it now belongs to you and is your property. I can't then turn around and rightly tell you what you may or may not do with your own property, as copyright attempts to do.
Those photographers who rabidly enforce their copyright are on the wrong side of this issue, and in my view they are in a losing battle. The reality is that their clients are copying anyway and thinking nothing of it. Why not simply give your clients the license that makes this a legal nonissue? Accept the inevitable even if you don't like it and get back to making great images.
I think that it will take a change of attitude on the part of many in this industry, but eventually we can move on from copyright, and things will be better for it. We must leave behind the coercion of protectionism and lead in the spirit of charity.