On Egoboo and original art

Recovered from the Wayback Machine.

I think I need either a copyright weblog, or a copyright category. If I add a copyright category, what graphic would I use? A graphic of an aspirin bottle?

Kevin Marks sent the link to a very interesting, though extremely footnoted document on copyright: Questioning the Economic Justification for (and thus the Constitutionality of) Copyright Law’s Prohibition against Unauthorized Copying, by Mark Nadel, a lawyer.

I discovered the phrase “egoboo” in the document, an abbreviation of “ego boost”. Get used to it, I’ll be using the phrase much in the future.

The document focuses on monetary compensation for copyright, but gets into many of the items we’ve been discussing, including the moral rights of creators. In particular, the section titled “Access to Raw Materials” is fascinating. Best quote:


Courts have long recognized that all artists build on and borrow from their predecessors. Many of Shakespeare’s plots were originated by others. In fact, literary imagination may be “but a weaving of the author’s experience of life into an existing literary tradition.” As Siva Vaidhayanathan eloquently reveals, even leading copyright advocate Mark Twain acknowledged that “but then, we are all thieves,” and pop star Moby agrees. Thus, many have challenged the very concept of truly original work or that any one person can be recognized as the author.


Well this just releases my flights of fancy. Buckle up for the ride…

I can’t find the comment, but someone wrote in response to one of the weblog postings related to copyright that words are raw material from the public domain, so an author can never really ‘own’ what they write.

If I use the words badly, will you take them back?

You can’t own your home, because the dirt on which it rests originally blew there from somewhere else. You’re using someone else’s dirt. Give it back

The water you’re drinking was originally someone else’s p…ool.

Do you smoke? Well, you’re taking the public’s clean air. Did you ask first? And better not tell me you smoke AND you drive an SUV. Probably also talk on the cellphone while you drive, too. And eat red meat and belch in public.

BTW, did anyone give all of us permission to use the air around us to transmit our WiFi signals? And did anyone give you permission to use that stray signal you picked up?

Did you give me permission to use the Internet? Did I give you permission to read this? Wait! Wait! You have my permission! Don’t leave!

A photographer can’t own an image because all they’re doing is copying an original that doesn’t belong to them. As much as they may want the model, all they can own is the physical photograph, but not the image or what formed the image. Well, unless they’re photographing fruit they bought. Or their cat.

A parent doesn’t a own a child; they’re only leasing them for a while.

Give me time and I can find the right convolution to explain why none of us owns anything, and all of us are thiefs.

Now, this is fun!


MT Gets creative and becomes common

Movable Type is coming out with a new minor version release, 2.6. Among the new items is some improved support for text formatting that I’m really looking forward to. The Trotts have also opened up database support, and enhanced comments — all excellent additions.

Another change that’s going to generate some interesting talk here and there is support for Creative Commons licenses. From the description, it looks like you can turn Creative Commons license support on for your entire weblog, and the license information is included into the main index page and associated RSS page. Unfortunately, it doesn’t look like there will be support for adding CC licenses to individual items, unless you do this yourself (in which case, you’re out of luck for matching the material in the RSS file). You’re in an all or nothing mode.

I imagine this will increase the use of Creative Commons licenses all over the place, because there’s nothing that bloggers like more than pushing little buttons to see what happens. This is unfortunate, not because I want to actively encourage people to “steal” from the public domain by maintaining their copyright; but because people won’t be thinking about the consequences of pushing said little button.

A Creative Commons license is a binding legal agreement that, at the least, allows anyone else to re-publish your writing whenever and whereever they want, as long as they don’t do so for profit (unless you specifically grant this) and don’t modify it (unless you specifically grant this). Furthermore, you can’t stop them from re-publishing your work once they’ve done so under the license because the license can’t be revoked for a specific individual after the individual has invoked the license at least once. You can remove the license from future use, but once the permission has been granted, it can never be taken back.

AKMA has given consideration to the nuances of the Creative Commons license in his discussion about licensing with the Disseminary. INAL, but it seems to me AKMA is talking two different things here — contracts with writers, as compared to Creative Commons licenses attached to published documents. The former controls the relationship between the writer and the Disseminary directly, while the latter controls the relationship between the publisher and the public. I may not be a lawyer, but I’ve signed a lot of contracts in my life, and I don’t think Creative Commons licenses are the same type of beastie as a writing/publishing contract.

Hard to say, since most of the legal beagles out and about in the weblogging commons are cautious about making statements on the legality of specific uses of the CC licenses (being concerned, rightfully, about the possibility of getting their butts in trouble for giving advice that could be mis-interpreted.)

Of course, in an ideal world the CC license would be nothing more than artwork, as this world is populated with creators who create works solely for the express purpose of the works being used, re-used, re-published, and re-worked. Works consumed by a public that would never abuse this generosity.

(Yeah. Right. And the only reason we’re going to war with Iraq is to help the poor Iraqis find the true meaning of freedom.)

AKMA also references a discussion thread on copyright and published material. AKMA writes:


Once I decide to turn loose my expression on the world, other folks will do plenty of things with my texts few of which will be governed by concern for my innermost thoughts. If my thoughts need that degree of protection, I can jolly well not release them to the public.


I can appreciate AKMAs viewpoint — if we’re concerned about keeping the expressions inherent in our art (photography, writing, art, whatever) protected, don’t publish them. But that seems to me to be counter-productive to Creative Commons. Wouldn’t this view make us less inclined to release work on the Web?

However, I still think we may talking apples and oranges. For instance, if I publish a work on the web, you can look at it in many different browsers, print it out, copy it and send it in emails, talk about it at lunch and trash it, talk about it in your weblog and trash it, and there’s little I can do about it. I’m not that worried, either, about any of these activities. You can duplicate it, and I won’t be happy, but I won’t ask you to pull the duplication. If you duplicate all my work, then, yeah, we’ll have words. Something along the line of: Get your own life.

But there is one thing you can’t do without getting permission from me: access the writing, modify it, and re-publish it on the web or within some other medium. Unless I sell my rights to you, you can’t change what I write and publish it. You can change it all you want for your private edification…but you can’t publish it. Not on the web. Not in a magazine. Not in a newspaper. Not while eating green eggs and ham.

Following AKMA’s example about my parables, sure you can put them to music. I don’t grant this right, but most likely I’ll appreciate the efforts. Try and make money from the song and we’ll have words. And if you want to add to the story, or edit it, do so, but do so carefully. Weigh your opinion, and check your arrogance at the door.

I can’t speak for other artists, but when you’re a writer, when you put a creative work out into the public sphere, you’re putting a little of yourself into that work. No matter how good the editing, how helpful the feedback, there’s still a moment when you have to struggle with that small id within in order to appreciate the feedback. I don’t know about other writers, but this is never easy for me. I’ve been through this with a dozen books and I don’t know how many articles, but there’s always that little struggle.

So if you feel that your feedback and change really will improve the work, enough to approach the artists directly, then do so. But don’t get your feelings hurt if the artist doesn’t wrap arms around you and give you a big wet one.

As for myself and receiving suggestions (other than corrections to grammar and misspelled words, which are always appreciated), I might agree with your change, in which case I would incorporate the change and give you credit for your help, and allow you to republish the combined work (again, non-commercially). Or I may not care for the change, or even feel that your work ruins the message of my work, and at that point you can huff and puff and pout about the public domain all you want and my only response is going to be, “Get your own life.”

I don’t have this right with my books or the work I do for hire. But I hold this right for my other creative work.

I’m not trying to speak for other people, and I’m not going to play lawyer, and I’m not going to change my mind. If me wanting to maintain the copyright on my writing is stifling the free speech all of you out there, then I seriously doubt that you fully understand what free speech is about. Free speech has to do with being able to speak out against oppression without getting shot.

When I’m dead and gone, if any of this writing even lasts to that point, then have at it all of you. At that point, I no longer care. But while I still live and write, if you feel a burning need to improve on my artistic creations, my writing — go ahead. Nothing will shut me up faster.


Inspiration is not derivation

Recovered from the Wayback Machine

I have branded myself outsider, if not outcast, in some weblogging circles by not embracing Creative Commons without hesitation, and not being 100% behind the anti-copyright/pro-public domain movement.

(For what it’s worth, I am behind Imaginative Pastures.)

Scott Andrew LePera wrote an excellent posting saying very nice things about my Mockingbird’s Wish. His post also highlighted what I feel is the disconnect between what I’m trying to say, and what the folks who have been disagreeing with me are hearing. Scott wrote the following:

The Mockingbird’s Wish is itself a derivative work, having roots in wishbringer mythology passed down through oral tradition from numerous cultures. The theme is a familiar one: foolish animals go before gods and spirits to ask for wishes, often getting their just desserts in the end. Rudyard Kipling drew heavily on the same themes in his Just So Stories. I’ve never read Joseph Campbell, but I’ll bet he’d have something to say about the character of the wishbringer.

Shelley has, unintentionally or not, done a bit of rip/mix/burn literature.

I’ve never heard of ‘Wishbringer’, but the concept behind god-like beings granting wishes to foolish creatures is as old as time itself, and forms much of our folklore and mythology, as Scott points out. However, I differ with Scott when he says that I derived my story from Wishbringer. I think what he meant to say is that I was inspired by a genre of writing, of which Wishbringer is most likely a part of. And that’s the heart and soul of the miscommunication. defines derivative as:


1. Resulting from or employing derivation: a derivative word; a derivative process.

2. Copied or adapted from others: a highly derivative prose style.

What’s even more telling is some of the synonyms for derivative: plagiaristic, rehashed, procured, second-hand, uninventive, unoriginal.


Mockingbird’s Wish is neither a copy, nor an adaption of a specific work, and I certainly hope it was not uninventive, unoriginal, and second-hand. No one story or tale was in my mind when I wrote it, and the style is, I hope, uniquely my own. However, the inspiration for the type of story, and the concept of using a parable to make a point arises from every story and tale based on folklore and mythology I’ve read over the years.

In Mockingbird’s Wish there is a little Hans Christian Anderson, and a smidgeon of “Through the Looking Glass”, and a tiny bit of Navaho legend, an atom or two of a story I read years ago and can’t find, as well as a dab of Greek mythology, a hint of the King James Bible, and more than a little general faerie god-motherness thrown in. It’s inspired, in part, by all of these influences, and more, but it isn’t a derivation of any of them. The closest you’ll come, perhaps, is that I mention the nightingale in the story, and that’s the focus in Anderson’s classic The Nightingale. But then, Mockingbird’s Wish focuses on birds, which are the subject of Alfred Hitchcock’s classic movie “The Birds”, so if my work is a derivation of Anderson, one could also say it’s a derivation of Hickcock, too.

The point I’m making is that there is a world of difference between copying or adapting a work from another and creating an original work based on inspiration. No matter how modified, or beautiful, or grand, the derivation is and will always be a copy, while the inspired work is, and will always be, an original work. This isn’t to say that derived work is “bad”. But a derived work is dependent on a specific work that, if it had not been created, the derived work would also not exist. Inspired work is not dependent on any one work or even any one artist.

Copyright laws provide controls on derived works, but not inspired works. When a work enters the public domain, it can be used for a derivation, but a work can provide inspiration regardless of whether it’s copyright protected or not. This is one of the points I’ve been trying to make, and one that seems to keep failing — to many of the people who I disagree with, there is no difference between the two, while to me, there is a world of difference.

Another point I’ve been trying to make, and one that has even less acceptance if that’s possible is that regardless of copyright, there exists another element that should impact on what we do with another’s work: respect.

An example that keeps being brought up is Samuel Beckett and his plays. Beckett, perhaps more so than most playwrights, had tightly held notions about how his plays were to be produced, including blocking two plays because female actors were brought in for male roles. Some would say that Beckett’s strict controls inhibited other’s interpretation of how the play should be produced. Scott wrote:


I simply disagree with the notion that any creative works are so important that we must have laws that state they cannot be interpreted in any other way other than how the author intended. Things are interpreted, and reinterpreted. It’s the way our culture works. Even our own Constitution is constantly being reinterpreted, sometimes with grave consequences.


Scott has a very good point, but then, so did Beckett. Beckett’s view was that he was ‘inspired’ to write a play that had a specific message, and someone else’s interpretation of his play could also change the message, and this changes the soul of the play itself.

Ultimately the question of inspiration compared to derivation compared to interpreation reduces to: does the need of the new artist to re-interpret or create a derivation of the original work take precedence over the need to respect the original artist’s wishes? This is a question that can never be answered by copyright law because it is an issue of respect as it is balanced agains innovation.

This question, or it should be, the question asked every time a person want’s to re-interpret another’s creation. It is outside my comprehension how an innovator who is so moved by a piece of work to want to apply their own interpretation on it, not also be moved by the original artist’s wishes. If they are not, then their arrogance can’t help but obscure the original artist’s message and rather than add to the work, they detract from it.

However, if the innovator does ask themselves this question, and applies their innovation with respect to the original artist, carefully, delicately, adding their own message without destruction of the original artist’s, then the work can be enhanced. But only a person who can see beyond their own needs has the empathy necessary to merge their view with the original artist’s view.

I think my biggest concern about all of this is that we seem to be a society that is progressing towards an attitude that it’s okay to rip/mix/burn with no thought of the consequences, the results, the original artist’s views or work, or anything other than our own desires to do what we want, when we want. Cheap hacks rather than inspired creations.

Scott wrote at the end:


And let’s face it: sometimes the derivative is better. Or at least more consumable.

Not sure how to respond to that, except to quote what Michael Hanscom wrote about Mockingbird:


I’ve always tried to do my best to sing my own song. Some days I do better than others, of course, and it’s easy to get lost in the chorus, but at least I can always keep trying.

(I said in a previous posting that it was the last posting on this topic; I guess I lied. But I was inspired to write this when Mockingbird’s Wish was called a derived work. )

Copyright Legal, Laws, and Regs

Freedom to innovate

Recovered from the Wayback Machine.

UpdateOf course, I realize that I’m probably a-l-l-l-l-l-l-l alone in the viewpoint I’m expressing in this post. Which is a true measure of freedom to speak — when you can speak amidst your peers and not get stoned.

(Damn, did I just get hit by a falling link?)

And no, as a matter of clarification, I wasn’t offered a job with Disney. But I do get unhappy when I hear people say things such as “artists gouging their rights from the public”. Makes me not want to be an artist, if by doing so I’m ‘gouging’ someone out of their rights to take my stuff and do what they want with it.

If Mark Twain were alive today, he’d agree with me. You know something, else? If Mark Twain were alive today, he’d be a great blogger.

And he’d agree with me.


This will be my last posting on copyright, Creative Commons, Eldred vs. Ashcroft, and freedom of speech as compared to freedom of innovation. Too often in these discussions we become little mini-lawyers, spouting out rules and regs of law, citing article and verse, as if he or she who can reference more, wins. What we should be discussing is what all of this means to us, as individuals, and leave the law to the lawyers and the discussion of law to the courts.

Long ago when I talked about the Creative Commons licenses, Dorothea Salo wrote a weblog posting about how she wouldn’t be using CC licenses or copyright notices at her weblog. Her reasoning is based on a story of plagarism, revenge, and brilliance; all set in the early 1600’s and resulting, ultimately in that classic work El ingenioso hidalgo Don Quixote de la Mancha. According to Dorothea:


To me, these are appropriate revenges on an appropriate field of battle, revenges that enrich us all. What good to world culture is a court fight over creativity? What is the good of automatically branding creativity with the mark of the lawyers, as if there were no other way to think or act toward it?

The only unchanging language is a dead one. The only creative work never to be reworked, rethought, stolen from, excerpted, (yes, even) copied is—a dead one. The legal arena of copyright, even the benign-by-comparison Creative Commons form of it, is murdering creative works both existing and potential. Killing them dead


Dorothea’s choice is an unusual one today — she chose no legal path, at all. In other words, a person can take her work, do what they will with it, and she won’t sue them or otherwise invoke any law on the person. One could say that Dorothea has given her works to the Public Domain, but she doesn’t even necessarily acknowledge the Domain. Her work is. Use it, or not.

What Dorothea has done is shown us that copyright laws are only effective if the copyright owners choose to exercise their rights of ownership. If a thousand people copy a poem, a book, or a song, and the owners of same don’t sue, then ‘rights’ as granted by copyright law are meaningless. Copyright law is a passive law — it doesn’t seek to enforce your rights, you must invoke both the law and your rights.

A couple of months back, Shannon Campbell wrote a post about another weblogger, Scott Andrew LePera, copying one of her songs and then editing it, adding himself into the mix. Well, this was clearly an act of copyright infringement, but instead of getting a lawyer and suing Scott, Shannon was delighted. She wrote:


Having been a solo performer a greal deal of my career, I’ve never had the opportunity to hear one of my songs with bass and percussion. To be honest, if you’d asked me to pick one of the six or seven I have available for download to overdub, this would’ve been the last one, but only because I never envisioned it would work so well.

You did an incredible job of working with the dynamics of the song, and building it *just right*. The harmonies are perfect, especially on the chorus, where I’ve had a lot of trouble finding the pocket for them myself. I guess it’s that whole “objectively listening to your own material” thing.


Derivation really is in the eye of the artist, and some artists support derivatives and others don’t or don’t support certain forms of derivation. Regardless of what you do with the copyright laws, how you manage their lengths and their enforcement, a derivative work will always be a goodness if supported by the creator, and tainted if it is performed in defiance of the creator. No copyright law will ever change this, and this isn’t a question of ‘natural’ law versus any other kind of law — this is based on human behavior.

In my comments, Timothy Phillips wrote:


My view is that the rights that copyright holders enjoy are rights that have been gouged out of the public’s rights (emphasis added). The public has “sacrificed” (James Madison’s word) or “derogated” (Levi Lincoln, who I believe was Attorney General in the first Jefferson administration) some of its rights to the rightsholder. Hence whatever rights the copyright or patent holder has, the public had first. The public cut off a bit of its rights to give to the rightsholder for a time. Or perhaps more exactly, the public agrees with the rightsholder to refrain from exercising its rights for a time, in order to create an exclusive privilege by way of encouragement ot the author or inventor.


By the very nature of this statement, Timothy has put the artist and the public almost into an adversarial position — the artist has ‘gouged’ out his or her rights to her own work. I compare this with another quote that appeared in another of my comments from Gina Guiliano:


“Lord Thring asked me what I thought would be a fair and just copyright limit. I said a million years – that is, copyright in perpetuity. The answer seemed to outrage him; it quite plainly irritated him” (Mark Twain [1906], The Autobiography of Mark Twain).



The point that Mark Twain makes is that these so-called copyrights granted at the sufferance of the public to the artist should be the norm; it is then up to the individual artist to decide how their art is used, copied, re-sold, or innovated on. And if the artist is comfortable with the innovation, then the derivative work prospers; but if the artist is unhappy with the derivative work, then how can the derivative be anything more than a rape of the original artist’s creativity? A mocking of that which you seek to emulate and derive?

Much of this case surrounds Disney’s control of Mickey Mouse — Free the Mouse, goes the slogan. But to what purpose? If you use Mickey Mouse in a manner that generates consternation of the Disney corporation, and most likely would have caused consternation to the original artist, Disney, then what is the point? That you used the Mouse because you could use the Mouse? That you used the Mouse as a weapon against Disney? That you used the Mouse because you lacked the creativity on your own to create your own character?

What would be the point?

Also in my comments an anonymous poster brought up the famous playwright, Beckett, and how he wanted strict controls over how his plays were staged, a strictness that is still enforced by his estate. By denying certain modifications on his work, Beckett was considered to have somehow abrogated the innovators’ freedom of speech. But how? One would have to assume that the author of a play understands his or her work enough to know when a derivation is, to the author, harmful to the original intent of the play. Should the original author’s freedom of speech be subsumed as lessor to that of the innovator?

By what standard do we measure these things that he or she creates has less rights than she or he who copies and modifies?

In one particular instance, Beckett sued a production company that wanted to use all female characters for the play, “Waiting for Godot”. He said at the time:


Had I wished those characters to be female, I would have said so.


Is Beckett to be condemned because he created a finely crafted play, with many built in dependencies, of which one such is that the players are not all women? To him, to change the sex of the characters was to change the essence of his work — to abrogate his freedom of speech as expressed in his work.

I’ve heard people say that many times a work is necessary in order to prove a point, so one must use the work in order to exercise freedom of speech. For instance, one might recite a poem at a demonstration, or give the Gettysburg Address. But neither of these is a innovation as much as it is a recitation of the original work. And when it comes to writers at least, I know of few who would ever seek to stop a speech on a campus, or have a publication pulled because it recited some of their work in order to prove a point. Forget laws, and what is or is not allowed, I know of few writers who wouldn’t like to know that their work is inspiring enough to be used to prove a point. Unless…

Unless, the writing is pulled out of context, modified, and used to prove something that is abhorant to the writer. Then few would not fight to reclaim the true meaning of their words. To reclaim their freedom of speech.

Innovation does not mean “copy and manipulate until the end result no longer resembles the original”. It means “..the act of introducing something new”. Innovation should be based on inspiration, and should be an act of celebrating an original writing or piece of art or music because it so inspires a person that they take that which is given and work to create something new from the old; but something that is an inspiration, not an exact copy that one changes key items in order to get written up in the newspaper for the audacity of such change. Even I, a person who is not heavily involved in the arts, can tell the difference between true innovation, and cheap rip-offs.

I’m not going to debate this anymore, and I’m certainly not going to go head to head with the legal wannabes, quoting article and law. I know what I believe: that copyright is only meaningful when invoked; that many artists are flattered when their work is quoted or copied for inspiration, as long as the artists living isn’t threatened, and their own rights aren’t cast aside; that works of art are an expression of speech that must be given the same rights under the constitution as those who would seek to use this art for their own means.

I hold the copyright on these weblog postings, not because I think they are works of great writing, but because I don’t really care to have them copied elsewhere. The reason is that the postings are part of a package, which includes all the writings that surround each individual posting, the comments and the trackbacks, even the colors and the look of this weblog. All of it combines to say something that is unique to me. When everything but the writing on a particular post is stripped away, then I feel as if my words have been taken from me, and I’ve been shut out. I feel that my freedom of speech has been denied me, because my ‘speech’ is the weblog, itself, not just an individual piece of it.

But I encourage people to quote me, to pull sections of the writing into their own writings, to leave comments, to disagree, or agree, or even to tell me I’m full of it. I even give people the platform to tell me this, within my weblog. So how am I depriving the public domain of their freedom of speech because I want people to come here to read my posting in its entirety?

(Regardless, those times when entire postings have been copied, I’ve not complained — such is life on the Internet. I feel the same about my photos — as long as you don’t sell them, I’m not going to complain if you copy them. Probably will if you muck them up into something opposite of what they originally meant.)

Loren Webster writes, wonderfully, about stories and poems in his weblog, and wood s lot is famous for linking to incredible photos and articles and stories. Have they ever violated copyright law by doing so? Isn’t the question really, has anyone ever invoked copyright law on them in their actions? Would this stop them from writing?

I guess I don’t know. I don’t think so. Loren might not publish poems by one specific artist, if requested by that artist, but there are so many others to write about, either not covered by copyright, or open enough that they don’t invoke copyright. In fact, even if an artist’s poems were not covered by copyright, if the artist asked Loren not to write about their poems, I don’t think he would.

The irony of this is that Loren has covered To Kill a Mockingbird, a work banned in many schools because of the language used in the book. Where’s the freedom of speech in that?

(Loren, am I dragging you into something again? Should I pick on someone else for a while? I can pick on Jonathon, or AKMA, if you’d rather. blink blink.)

I do know that, to me, true freedom of speech has to do with speaking out against cruelty and against war; and speaking for tolerance and justice. I have the right to speak out against President Bush and Vice-President Cheney, as well as Attorney General Ashcroft, without the fear of going to prison. To me freedom of speech is fighting a war in Iraq I know in my soul will cost the lives of thousands.

You tell me how Mickey Mouse is going to make me more eloquent, or the words more imperative, and I guess I’ll become a believer. But in the meantime, I’ll just have to muddle along using my own thoughts, and my words, and my own speech, and with an occasional quote or two from my friends.

And you can quote me on that.


Creative Commons

Recovered from the Wayback Machine.

According to Dan Gillmor, the concepts and technology behind Napster are continuing despite the recent resignations and layoffs at the company.

In particular, Gillmor references new organizations and technologies being introduced at the O’Reilly Emerging Technologies Conference this week, including Creative Commons — a non-profit organization dedicated to “…the notion that some people would prefer to share their creative works…”.

Lawrence Lessig is Chair on the Board of Directorys, and technology team members include Lisa Rein and Aaron Swartz, both of whom I have worked with in past and current writing efforts.

What do you think? Would you dedicate your creative effort to the public domain in the interest of sharing? Technologists have been doing this for years with software; now the door opens for creative talents in other fields to share their work.

Will photographers, writers, musicians, and artists in other media buy into this concept?

Creative Commons: A bold new venture.