Tag Archives: public domain

A teachable moment after The @VillageVoice used my @Flickr photo despite my chosen @CreativeCommons license

Nopantsvillagevoice

Last week, a Flickr contact of mine congratulated me on having one of my photos printed in The Village Voice. I had no idea what he was talking about. He said it was one from my No Pants Subway Ride series. [More information about the No Pants Subway Ride, dreamed up by Charlie Todd and Improv Everywhere, is on their official blog post describing their event.]

My friend was sorting his recycling, and in the process of gathering his newspapers, he happened to skim the January 4-10, 2012 issue of The Village Voice and recognize my photo and my name. It’s all so incredibly serendipitous. When I got my hands on his issue and saw my photo in print, I was delighted with the half-page size, their treatment of it, and my (albeit teensy) byline, but I was sincerely shocked and confused.

Clearly, anything I post online is public. I’ve been telling my students to forget “public versus private” and instead consider “public versus less public.” It is comically easy to go online and copy/download/steal an image, a song, a movie, a book, etc. The hard part is to make wise choices and consistently cite sources or seek permission.

Here’s the thing: I license most of my photos on Flickr with Creative Commons Attribution-Noncommercial. So, that means I expect credit for my work and for others not to benefit financially for something I am offering freely. As The Village Voice charges for subscriptions and advertising, they are a commercial enterprise and use of my photo is clearly for commercial purposes.

I left a message John Dixon, Art Director of The Village Voice, saying that I appreciated the photo credit in the paper, but I was surprised no one contacted me or asked permission to use it. He wrote me the next day with a really nice apology, explaining that my chosen Creative Commons license “fell thru our quality-control cracks.” John offered standard compensation for a half-page re-use photo ($100) and to send extra hard-copies of the issue as it was no longer available at newsstands. I was amazed and gratified by John’s response, and my respect for Creative Commons grew. As per their About Page:

Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to keep their copyright while allowing certain uses of their work — a “some rights reserved” approach to copyright — which makes their creative, educational, and scientific content instantly more compatible with the full potential of the internet. The combination of our tools and our users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law. We’ve worked with copyright experts around the world to make sure our licenses are legally solid, globally applicable, and responsive to our users’ needs.

Original photo here: 

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Working with 8th graders in Art to participate in JR’s #InsideOut Project!

Last week, 8th graders chose an elective for their upcoming multi-week unit in Art (starting tomorrow). The four art teachers will each lead a different project for the next 10 classes, and the offered choices were a modified Tools At Schools project, reimagining/repurposing a book, transformational sculptures, and the InsideOut project. Out of the pool of 42 or so 8th graders at The School, 10 chose to work with me and Yoshiko Maruiwaand be a part of InsideOut!

InsideOut was conceived by this year’s TED prize winner, JR. As per his bio on TED.com, JR, a semi-anonymous French street artist, uses his camera to show the world its true face, by pasting photos of the human face across massive canvases. At TED2011, he makes his audacious TED Prize wish: to use art to turn the world inside out.”

JR took his prize monies and is using it to print large-scale posters of images sent in from all over the world. The guidelines are short, sweet, simple and listed on InsideOut’s website:

INSIDE OUT is a large-scale participatory art project that transforms messages of personal identity into pieces of artistic work. Upload a portrait. Receive a poster. Paste it for the world to see.

Yoshiko and I are excited to have conversations with the kids about JR’s global art projects, social justice through Art, Art History, public versus private space, legal and illegal installations, community, representations of self, political ramifications, and so much more. Also, I’m working to organize a second annual TEDxYouth@TheSchool on November 19th, and it would be great to have the 8th graders talk about this project to the audience.

Now to locate legal and public wall space to hang their posters…

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Publicly learning my lesson about properly using digital images from Artstor.org

As per my last post, I just finished a Renaissance Photoshop art project with 6th graders where we located digital images of Renaissance paintings from ARTstor‘s online digital gallery and then used Photoshop to layer themselves into the painting. During the course of the 3-day project, we had discussions about copyright, fair use, and public domain. We talked about how the Mona Lisa and all the other works we were altering are in the public domain, and our contributions to the original paintings were copyrightable.

I said that there were two possible hiccups preventing us from going forth and copyrighting our art: Our digital images of the paintings came from http://ARTstor.org, and the hardware/software we used is owned by Columbia University. Because I hate being ignorant and I love being right, I contacted ARTstor to find out if we could convince ourselves that we owned our altered image. I spoke to Cassy Juhl, a User Services Associate, who conferred with ARTstor’s lawyers and emailed me a few days later. Essentially, we can access/view/use images from ARTstor for academic and non-commercial purposes because Columbia University subscribes to their service. However, since ARTstor does not own the images in their digital collection, they can’t authorize manipulation of the files. I reminded the kids that ignorance is a terrible excuse for doing something unethical; Since we now know that we can’t use ARTstor’s images for this project, we cannot further ignore and abuse their Terms and Conditions of Use.

So, my latest idea is to generate our own collection of digital images of works of art at The School at Columbia University. Tons of museums allow no-flash photography, so I (or my students) can just gather our own photos of public domain art that we can then freely alter. As per the Mona Lisa, I’ll either have to elbow through the throngs of tourists at The Louvre this summer to take the best possible photo of her or establish a contact that can offer us a fair use copy.

Below is Cassy’s response that I shared with my 6th graders:

Dear Karen,
Thank you for your phone call.  After looking into your question regarding ownership of an altered image and I have a response for you. The ARTstor Terms and Conditions of Use ( http://www.artstor.org/our-organization/o-pdf/terms-conditions.pdf ) prohibit the modification of ARTstor images.
Specifically, see Section 6:

Prohibited Uses. You may not: (a) use the ARTstor Digital Library, or use, display or make performances with, reproduce, or distribute Content from the ARTstor Digital Library, for any commercial purpose whatsoever, including but not limited to fee-for-service use of the ARTstor Digital Library, or make any use, display, performance, reproduction, or distribution that exceeds or violates these Terms and Conditions of Use; (b) distribute and/or make available Content in the ARTstor Digital Library to persons other than as expressly permitted herein; (c) provide and/or authorize access to the ARTstor electronic database, such as through the sharing of passwords, to persons or entities other than Authorized Users; (d) download or print, or attempt to download or print, substantial portions of the ARTstor Digital Library; (e) incorporate Content into print or electronic materials that are for purchase or are disseminated for commercial purposes (such as by a scholarly or commercial press); (f) use (including reproduce, distribute, display or make performances of) the ARTstor Digital Library in any way that is not authorized under this Agreement and that infringes another’s Intellectual Property Rights therein; (g) make any adaptation or modification of, or any derivative work from, Content; or (h) attempt to override, circumvent, or disable any encryption features or software protections employed in the ARTstor Digital Library.

ARTstor does not own any of the images in the Digital Library and as such we are unable to broker rights for said images.  We are only able to offer high quality images because our contributors provide images to be used for the very specific uses outlined in our Terms and Conditions of Use.
Please feel free to contact us with any further questions or concerns.
Kind regards,
Cassy Juhl
___________________________________________
Cassy Juhl
User Services Associate
ARTstor

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Using Mona Lisa and Shepard Fairey to discuss copyright, fair use, and public domain

My 6th graders just finished a 3-day unit using Photoshop to rework a Renaissance painting. Today, we had a belated yet robust conversation about copyright, fair use, and the public domain. We specifically focused on two key pieces of art familiar to most everyone: Leonardo da Vinci’s Mona Lisa and Shepard Fairey’s Hope.

The class began with an awesome slide show put together by Yoshiko Maruiwa consisting of different images of the Mona Lisa. Kids were asked: Is it art? Who owns it? The answers were fabulous and fascinating. Most students decided that the altered Mona Lisa’s should be jointly owned by Da Vinci and the other artist. Some thought only the new artist owned the piece, as it referenced the Mona Lisa but was not an exact replica. One romantic hopeful thought no one should own the art, as Art is an exression of love and should be shared as a gift to the world. True.

After, I continued and facilitated the conversation from the front at the Eno board, punctuating our discussion with a bunch of quick Google searches to answer the questions that were brought up.

The Mona Lisa has a long and convoluted history. It was painted by Leonardo da Vinci who was commissioned by some patron. Da Vinci had it in his possession while on a trip to France and sold it to King Francois. It became part of the Royal Art Collection, passing from monarch to monarch until the French Revolution. At this point the painting became part of the public art collection housed at The Louvre and overseen by the French Government. It was stolen by an Italian and returned to The Louvre two years later (where it is still housed).
Q: Is there any Copyright protection on da Vinci’s Mona Lisa?
A: No. The copyright laws were not invented at that time.

A basic tenet of copyright law is that once a copyright has expired, it enters the public domain, for all to use. But when someone adds a copyrightable contribution to a public domain work, that contribution is copyrightable.

Title: LHOOQ
Year: 1919
Artist: Marcel Duchamp (1887 – 1968)
License: Protected by French copyright until 2039 (life + 70 years)
We were floored that there are two copyright camps based on whether you are in the US or in France:
1. This image is in the public domain in the United States because it was first published outside the United States prior to January 1, 1923. Other jurisdictions have other rules. Also note that this image may not be in the public domain in the 9th Circuit if it was published after July 1, 1909, unless the author is known to have died in 1940 or earlier (more than 70 years ago).

2. This file will not be in the public domain outside in its home country until January 1, 2039 and should not be transferred to Wikimedia Commons, as Commons requires that images be free in the source country and in the United States.

I shared a brilliant idea of printing T-shirts of Duchamp’s painting and selling them to French tourists as soon as they land in the US.

Then, we talked about Shepard Fairey’s Hope painting which was inspired by an Associated Press photograph. Essentially, the Associated Press commissioned Mannie Garcia to take photos of Obama at an event in 2006. Fairey adapted the photo in 2008, and his painting became immensely popular and was reproduced on button, tshirts, posters, sneakers, etc. The AP sued Fairey because Fairey did not ask permission to use the image, Fairey never cited the AP as the owner of the image, and the AP was not compensated. Fairey filed a countersuit saying he had Fair Use to adapt the original image. In an interview with Iggy Pop for Interview Magazine, Fairey states: I feel like what I did was both aesthetically and conceptually transformative. I think it’s fair use, but the Associated Press thinks it’s copyright infringement, and they’re really going after me.

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Unfortunately, Fairey destroyed evidence. We clicked to the Wikipedia entry about Shepard Fairey and read: …in October 2009 Shepard Fairey admitted to trying to deceive the Court by destroying evidence that he had used the photograph alleged by the AP. His lawyers announced they were no longer representing him…In May 2010, a judge urged Fairey to settle. Another good source is this piece in the Huffington Post.

At the end of class, we revisited the legality of our own Photoshop renditions of Renaissance paintings. All of the paintings we used are in the Public Domain (since they were painted hundreds of years ago before copyright laws were created), and each student produced copyrightable contributions. However, I pointed out two main issues that could prevent us from copyrighting our versions of famous masterpieces:

1. Even though the artwork is in the public domain, the digital file we used was downloaded from Artstor.org.
On their website, Artstor declares it is a “non-profit digital image library for education and scholarship.” Columbia University subscribes to Artstor, and therefore my school has access to the library. Under their Terms and Conditions, Artstor permits use for classroom instruction, related activities, and noncommercial scholarly or educational presentation. I’m currently waiting to hear back from Artstor’s legal department to find out if my students could feasibly copyright their photoshopped version of an Artstor digital image of a public domain painting.

2. All of our work was done on Columbia’s hardware using Columbia’s software during a “work” day at Columbia.
Any discovery that a scientist or professor makes while on the job or using work equipment belongs to the company. Doesn’t that apply here too?

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