Copyright Photography

Appropriate the visual

Jonathon Delacour has an interesting writing on appropriation art, the controversy about the Obama HOPE poster, and Walker Evans. I must admit to being mostly ignorant about appropriation art, where the artist takes another work and either creates a variation of the work, as Shepard Fairey did with the HOPE poster; or actually makes a direct copy of a work, as Sherrie Levine did by taking photos of Walker Evans public domain photos, claiming the works as her own, and then applying her own copyright.

Leaving aside all other issues, the legality of such appropriation is based on whether the new work is derivative or transformative. For instance, Picasso is consider an early appropriation artist, because he would appropriate things he found in the everyday world for his work. However, the materials Picasso appropriated were not works of art themselves, but everyday things that he would then transform into original creations of art. I had an uncle, heavily inspired by Picasso, who was also an appropriation artist, as he would take clothes hangers, paper, and paint, and create statues—one of which I, in the midst of my plebeian youth, threw away, thinking it junk.

I suppose that Fairey’s work could be considering transformative, too, as he took a photograph and transformed it into a painted, or more likely photoshopped, effort. Tom Gralish is the person who helped uncover the original photo behind the transformed work, and as the images he display demonstrate, Fairey used the same technique more than once with more than one photographer’s effort.

Fairey's appropriated art

The AP, who hired the photographer, Mannie Garcia, to take the photo used in the HOPE poster, disagrees that the “appropriation” of the photo is fair use, and have contacted Fairey to make arrangements (though there is some debate that the AP does own the photo copyright). It would seem that Fairey, himself, didn’t even know whose image it was he used until he was contacted. I found his ignorance of the original photographer to not only be offensive, but sublimely arrogant. If one is going to appropriate another artist’s work, shouldn’t one at least take a moment to discover the name of the artist? Evidently, to Fairey, not. To Garcia, his photograph is art; to Fairey, it’s raw material, the equivalent of a coat hanger.

I am not an expert in copyright law to know whether Fairey’s work is a violation or not, nor am I necessarily in sympathy with the AP, though I will watch the ongoing story with interest. However, I don’t have to be a lawyer to know that Sherrie Levine’s appropriation of Walker Evans work is legal, but morally reprehensible.

In Levine’s case, she took photographs of Walker Evans photos that were in the public domain, printed them out for a show titled After Walker Evans, and then copyrighted her photographs of the photographs. Since the Evans photos were in the public domain, she could do what she wanted with the images.

I gather, according to Jonathon, she had some postmodern feminist story to accompany the work that sounded all grand and really brainy, I’m sure, but strip away all the mental cotton candy and what you’re left with is a photographer exactly duplicating another photographer’s work, and then attaching her name to it.

Applaud, the postmodern Athena is avenged on the paternalist Zeus. As others have writtenLevine’s disrespect for paternal authority suggests that her activity is less one of appropriation: she expropriates the appropriators. How could I, as a feminist, not applaud such an act?

What if we were not talking about visual art, though? What if I were to take a work by another representative of paternal authority, Mark Twain’s The Adventures of Huckleberry Finn, type it exactly as written into my computer, sign my name as writer, convert the document into Amazon’s Kindle format, copyright the effort, and sell it at Amazon? According to both Levine’s viewpoint and this modern variation of appropriation artists, not only would such be acceptable, I should be praised

In 1979 in Sherrie Levine rephotographed Walker Evans’ photographs from the exhibition catalog “First and Last.” Her post-modern assertion that one could rephotograph an image and create something new in the process, critiques the modernist notion of originality (though it creates an alternate postmodern originality in the process.) In dialogue with the theorist Walter Benjamin, who explored the relationship of reproduction to artistic authenticity, the reproduction becomes the authentic experience.

Yet, it is likely that those who would praise Levin and her work, would condemn me and mine. She is artist, I am vile plagiarist. A plagiarist easily caught, because the original story is so well known.

If the work of Twain is too well known to be vanquished by a single act of unattributed duplication, then what of our replication of syndication feeds, or weblog posts? The casual page such as those I quote from in this story? Would our writing not be like Mannie Garcia’s photo, in the public sphere but not well known enough to have self-defense against such deception?

I don’t know of any writer who would willingly allow their writing to be duplicated and attributed to another, without even a semblance of a nod to the originator, but we don’t have the same problem with visual works, such as photographs. As Jonathon states, We are in a hall of mirrors, but mirrors that shatter with text. If one can’t take the concept from one artistic medium to the next, then the concept is suspect, the art tainted.

Legal, Laws, and Regs

Bad Laws

Tomorrow Judge George Wu is presiding over a session regarding the requests for dismissal of the misdemeanor convictions against Lori Drew and the mistrial on one count. I’ve been working for some time now on a longer writing about Lori Drew and Megan Meier that I hope to publish as soon as we see where this particular play ends. In the meantime my state passed a modification to our state’s harassment laws reflecting the events surround Lori Drew and Megan Meier. The newly modified law has been invoked seven times since its passage in August.

I thought I would share my state’s harassment law with you. As you read it, think back on the interactions you’ve had with others in the past. Ask yourself: how many people do you know could be criminally charged based on this law? Include yourself, if appropriate.


565.090. 1. A person commits the crime of harassment if he or she:

(1) Knowingly communicates a threat to commit any felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person; or

(2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm; or

(3) Knowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication; or

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or

(5) Knowingly makes repeated unwanted communication to another person; or

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the age of such person.

2. Harassment is a class A misdemeanor unless:

(1) Committed by a person twenty-one years of age or older against a person seventeen years of age or younger; or

(2) The person has previously pleaded guilty to or been found guilty of a violation of this section, or of any offense committed in violation of any county or municipal ordinance in any state, any state law, any federal law, or any military law which, if committed in this state, would be chargeable or indictable as a violation of any offense listed in this subsection.

In such cases, harassment shall be a class D felony.

3. This section shall not apply to activities of federal, state, county, or municipal law enforcement officers conducting investigations of violation of federal, state, county, or municipal law.

Since I live in Missouri and am subject to this law, I have a change of policy at my place.

If you are 17 years of age or younger, you are not welcome to write a comment to my posts. I cannot run the risk that another person may respond to your comment in such a way that you won’t take offense. I can’t run the risk that I won’t be that person. Therefore to ensure that no one here “accidentally” commits a criminal activity, children under 17 are not permitted to comment. Personally, I’d rather you not read the site, either, as I’m sure to write something some day that the Missouri legislature will determine to be “harmful” to children.

If you want to comment anonymously, feel free. Note, though, that you must then be the nicest, sweetest, most agreeable person in the world. Plenty of joy-joy feelings, and as harmless as a newborn kitten. This isn’t for my sake— this is to protect you. After all, if you cause emotional distress to another person while commenting in my space anonymously, you’re in violation of my state’s harassment laws. I’m sure that California isn’t the only state that has a US Attorney or other prosecutor who wants to make a name for him or herself, and is willing to use the flimsiest excuse to do so, including going after anonymous commenters in a Missouri-based weblog. Especially when said US Attorney is under fire for other actions, and knows he or she is unlikely to keep their job once a new administration is in place.

Watch the birdie, not the hand!

I’ve also resolved to stop being critical of people like Mike Arrington, Robert Scoble, Dave Winer, et al. After all, my writing in my web space is a communication, and we know that it’s unwanted—I do believe each has indicated at one time or another that they find me distasteful. They may each have told me to go away, at some point. Therefore, any future writing about them, especially critical writing, makes me into a criminal.

Heck, maybe we should just all shut up, except to say how good everything is, and how peachy keen everyone is, and aren’t we all just so damn happy? Then no one will take any offense at anything we say.

Well, no one will take offense but those people who still think. And who writes laws to protect those who still think?

No one.

update The conference on the 29th was a status conference, which is usually held pre-trial. I’m assuming this may have to do with the mistrial. No idea when Judge Wu will rule on the dismissal requests, or if he’ll rule on the dismissal requests. He seems to prefer keeping this case in a state of limbo.


The prosecutor in the Lori Drew case has dropped the conspiracy charge. Judge Wu has set a court date for January 8th, regarding the requests for dismissal from the defense.

Legal, Laws, and Regs

Drew’s lawyer files response in court

Recovered from the Wayback Machine.

The lawyer for Lori Drew has filed a response in California, to the charges that Drew violated MySpace’s rules and terms of service. If you don’t remember who Lori Drew is, she was the woman accused of “hounding” the 13 year old Megan Meier to death. I used the word “hounded” facetiously, as there’s much more to this story than a tale of a lost little girl done wrong by a Big Bad Woman. The event happened here in Missouri, and has been a very major story, as well as source of contention.

These charges are absurd, as well as being potentially devastating to any and all online web usage. From the filing, and quoted in the St. Louis Today report:

“If violating user agreements is a crime, millions of Americans are probably committing crimes on a daily basis and don’t know it,” the filings says.

Steward also says that laws have to make clear what is prohibited, and the one being used against Drew doesn’t. The terms “access” and “unauthorized” aren’t defined in the law. The law fails to warn the public of what is prohibited and establish standards that would prevent it from being enforced in an arbitrary and capricious manner, he wrote.

“A reasonable person could never know whether their conduct violates the statute,” the filings say, and the law is “ripe for discriminatory enforcement.”

Steward also writes that it is unconstitutional to delegate governmental powers to private parties. Prosecutors’ interpretation of the law would allow Web site owners unlimited authority to decide what was unauthorized.

“Almost any computer owner can set up whatever arbitrary and unique rules they want, and a violation of those rules can lead to a. . . prosecution,” Steward wrote

In other words, you could not only lose access to a web service by not following the “rules” of the service, you could thrown in prison for not following the rules. How absolutely insane is that?

More from Wall Street Journal and Washington Post. In addition, copies of the filings: Failure to State Offencedelegation of authority, and vagueness.

Copyright Writing

Painting the Web now DRM free and on the Kindle

I had no idea that my book Painting the Web was going to be one of O’Reilly’s first batch of DRM-free eBooks. I was stunned to see it as one of the first 12 Kindle books O’Reilly has released.

Painting the Web does make a nice ebook. I think the graphics are better in a digital format rather than in print. I’m not quite sure, though, how the graphics will translate to a Kindle. I’ll probably buy a copy for my own Kindle, just to see what the book looks like on the device.

There was a group of us authors who had a discussion in the Kindle forums several months back, about books with figures. My suggestion at the time was that companies who publish books with lots of figures to the Kindle, should also provide a PDF or some other online copy of the book, or at least the figures, so that people have both—the Kindle for the text, and the other format to better see the figures. It sounds like O’Reilly is using this approach with the company’s ebook bundles: pay one price, and get the book in PDF, EPUB, and Kindle-compatible Mobipocket. So now, you can now read Painting the Web in Kindle, Sony’s ebook reader, on your computer, and yes, even on paper.

In addition to being able to read these books in about every environment known to humanity, the digital formats make it simple to add corrections to an existing book and have those corrections reflected immediately in the digital copy. This is the way of the future. I’m not saying paper books are going away, but I know I certainly don’t miss paper with my Kindle.

The DRM-free nature of the books is a gamble. Other publishers have started to put out DRM free books, too, such as some of the Sci-Fi houses like Tor and Baen. My being able to buy food and pay rent next year depends on how well this gamble pays off.

I’m pleased to see Painting the Web on both lists. This is a book I’m very fond of, and I like that it’s taking part in O’Reilly’s new venture. I was surprised, though, as I hadn’t been in any discussion with O’Reilly about the book being included.


Google, YouTube, and the Good and Bad

Recovered from the Wayback Machine.

I’m not one of those piling on the sack cloth and ashes over today’s ruling directing Google to turn YouTube user records over to Viacom. Was the ruling overreaching? Oh, probably without a doubt, but it also justifies the worries we’ve had about Google’s storage of our user information. In fact, it was Google’s own “assurances” of privacy issued on the company’s own weblog that went into the judge’s decision to release this information.

We’ve been saying just such an event like Viacom suing for the information would happen eventually, except that the entity getting this information could have been much worse. Viacom will learn that I like octopus and squid movies, some music videos, funny cats and other amazing critters, very clever commercials, videos about corporate greed, the environment, and civil rights, and, unfortunately, a video featuring an older woman dying in the waiting room of a hospital while the personnel watched and didn’t care. Have I watched any copyrighted material? It’s all copyrighted, folks, but have I watched any material that infringes on copyright? Doubtful, but even if I had, I am not going to be suddenly sued by Viacom for copyright infringement, as some of the more hysterical are implying.

However, we don’t know how much information Google does have about us. For instance, there is information from searches and other activities that I would prefer to be private. And with Google and Yahoo sharing resources, I can’t guarantee that there is such a thing as a “private search”, even if I used multiple search engines. Google’s complete disregard for our concerns puts us at risk for just such events as this occurring, except now, rather than talking about a hypothetical situation, we have fact staring us in the face: Google’s data privacy provisions are anything but private.

Though I am not necessarily disappointed this event happened, I am disappointed that this lawsuit is allowed to continue. The whole point on DMCA is to prevent just such events like this from happening by providing a safe harbor for ISPs. If the judges are going to ignore the DMCA when the corporations file law suits, than perhaps we should begin to ignore the DMCA notices we receive as individuals. Obviously as a law of the land, DMCA is cherry picked to death.

In the end I find it doubtful that Viacom will find its material is the most popular on YouTube, and its draconian devices will only serve to bring into question how inconsistently the DMCA is being applied. I also doubt that Viacom really is that interested in the data—this is more likely a move to get Google to settle rather than continue the court case.

In the meantime, now is the time to set our sights on Google, not Viacom. Google’s assurance of our data being kept safe has proven to be false. The question is, what will the company do about it? If the company chooses not to act, what will we do about it?


I read the ruling and Google’s attempt to protect the users was lukewarm, at best, as compared to the company’s protecting its own source code. Google provided no viable defense, cited no laws, and even provided an argument that was easily refuted in the company’s own weblog. In addition, it didn’t even attempt to put conditions on what happens to that data, including ensuring that the data is not published in any way. All we can see from this ruling, is a company indifferent to the concerns of its users. Amazing.

I disagree, though, with those who say that the source code Google was protecting was unimportant. This is not the Flash source used for the videos; this was Google’s own technology the company has implemented in order to look for copyright infringing material when first posted. This, in addition, to portions of its own search code. This is not “trivial” code, and that Google sought to protect it should not be dismissed out of hand.

What peeves me is that Google fought harder to protect it, than us.

second update

Interesting take from danbri on Google’s work with social graphs and now much more far reaching something such as a YouTube username and/or IP address can be. Dan provides a listing of information about him that can be derived just from his supposedly pseudo anonymous YouTube login.