Tuesday, March 24, 2009

Selling Your Neighbor's Lawnmower: The CC and Personality Rights

An interesting situation resulting from creative commons licensure on Flickr has cropped up relatively recently. A church youth leader posted a picture of one of the kids in his group on his Flickr account, and he chose a CC license (specifically the one that requires mere attribution for commercial use) for the photos in his photostream.

Half way around the world, Virgin Mobile in New Zealand grabbed the photo and printed up (rather large) advertisements, insinuating that the girl pictured was a pen pal that someone would finally be able to "drop" once they got a Virgin Mobile phone. That's not a nice thing to say about a pen pal, and the girl, who's name is Alison Chang, was reasonably kind of upset about her depiction on these ads.

So, she sued. Or rather, someone sued on her behalf. The interesting thing about this case is that the guy who took the photo has no copyright infringement claim against Virgin. His license gave Virgin every right to use the photo in their ads. The theory in this suit isn't a copyright one; it's a "right to publicity" or "personality rights" case. It's more akin to a model who hasn't signed a release form than to a photographer who's work has been stolen.

But aside from the claims against Virgin, the suit also names the Creative Commons as a defendant. That makes no sense to me. The license worked exactly as it was supposed to: the photographer released any rights to the photo (conditioned on attribution) to anyone who wanted to use the work. The Creative Commons didn't make any mistakes here. The photographer, however, might have. He released a right to use Alison's likeness that he never had in the first place. It's similar to if I sell you, via eBay, my neighbor's lawn mower, and my neighbor gets mad at you for using it. If the photographer did anything wrong, it was that.

But he probably didn't do anything wrong. The issue has to be re-defined: a reasonable person knows they can't sell their neighbor's lawn mower to a third party without consent. Does a reasonable person know they can't give their neighbor's likeness to a third party without consent? In general, probably yes: anyone knows, for instance, that people in the background of a reality television shoot have to sign releases. So does a reasonable person know that posting a photo under a CC-atrib license is the same thing as giving it away to anyone who is willing to credit them, to use it however they like? Maybe not.

This is a failure of individuals to try to understand their licensing, not a failure of the license. Flickr, by default, puts all new uploads under a traditional "all rights reserved" license. An individual has to actively switch their photos from "all rights reserved" (what this photographer probably wanted) to "some rights reserved" (the license that allowed this supposed misappropriation). Things like this wouldn't happen if people took a moment to think about what switching their license gives up. Should courts protect people who don't understand what they are giving away? Or should they incentivise learning what they are giving away? Maybe some combination of the two?

This case will help define how "personality rights" and model releases work for alternative licenses like a CC license. Either way, as alternative licensing structures become more commonplace and are more fully understood by the public, cases like this will likely become a lot less frequent. And according to CC, education about these licenses is one of their main goals. That means, at least in regard to the Creative Commons, that as time goes by there will be less litigation and more education, with reasonably understood copyright policies and rules eventually taking shape.

(Note: the image at the top is from Joe Pemberton's photostream, used under a CC license. It's a clever little image, but unlike the guy who created it, I don't think any of this confusion is the CC's fault.)

Monday, March 9, 2009

"Sita" Tries Very Very Hard to Finally "Sing the Blues"

New York based animator Nina Paley has done something remarkable in her film Sita Sings the Blues. The film is an elegant combination of a few disparate elements: animated dramatizations of the tales contained in the ancient Indian Ramayana, a hilarious retelling of those stories by three Indian shadow puppets, the titular Sita singing old blues standards to her mistreating husband Rama, and the story of Paley's own mistreatment by her husband while he was away in India.

It sounds complex, but the two narratives, as embodied in Paley's true breakup story and in Sita and Rama's story in the Ramayana, are pretty coherently presented throughout the film. The two tales also have a lot of parallels, and Paley deftly uses these various stylistic elements to draw them together in interesting ways. Even the blues song interludes resonate with meaning parallel to the two stories being told. The particular songs Paley chose for her film are all performances by early 20th century jazz singer, Annette Hanshaw, and her voice complements the film exceptionally well.

But there's a problem.

You see, song recordings like Hanshaw's are often, even now, still under their copyrights. Even more troubling is that the rights to a song can be divided between the copyright holder of the recording itself and any number of co-composers. The handful of songs that Paley used in her film for example, it turns out, were under copyrights owned by a long list of different people (you should check out that list... it's kind of daunting). And the amount of money this list of people required Paley to pay in order to use the songs proved prohibitive.

The short version of the contorted copyright fiasco is that Paley couldn't afford to get the required licenses to exhibit the film in theaters. She couldn't afford to release the thing she had worked on for so long solely because the songs she used were tied up in America's absurd copyright system. Her own expansion and reinterpretation of the meaning of these songs was held back by a backward-looking system of giant copyright terms.

Eventually, the critics caught wind of the film and watched their screener copies. The consensus was that the film was at least fun to watch, and at most a masterpiece (here's Ebert's take). The hype ball started rolling, and eventually Paley's plight was public enough that people started demanding to see the film, one way or another.

Paley has responded. Over at thirteen.org, the film is streaming in full. In fact, this site offers this list of places to see and download the movie for free all over the internet. All Paley asks is that people share and respect her art, and maybe even donate. She is concerned about money, of course, but she first and foremost needs this work to finally be seen. In her own words, "I hereby give Sita Sings the Blues to you. Like all culture, it belongs to you already, but I am making it explicit with a Creative Commons Attribution-Share Alike License."

So I recommend that you go watch the film, but even if you don't, at least think about what this means for the future of entertainment: we all own our culture, and if someone wants you to pay for it, in this increasingly pirated and remixed media world, they need to make it worth your while. Not only does Paley offer one example of a film that would be worth your while, she also shows that it isn't worth the while of ancient copyright holders to imprison the culture of the past; if we want it, it's already ours anyway, and we're going to use it.

Sunday, March 8, 2009

Indifference to Darwin

On February 12, 2009, many participated in Charles Darwin’s birthday, aptly named “Darwin Day,” to celebrate his contributions to science and to celebrate science in general.

Darwin’s evolution theory, a process by which inheritable changes in a population are spread over many generations, is the cornerstone of biology, providing vast insight into the history of our world and our species.

America is often criticized as one of the few secular countries where a majority of its citizens do not believe in evolution. Many argue that misconceptions about evolution are to blame, and to be sure, there is plenty of misinformation about the subject widely available on the Web. But recent surveys show that people really just don’t know anything about evolution in general, and frankly, they don’t care.

A Gallup Poll taken an early February shows that 46% of Americans could not name what Darwin was famous for. While 25% of Americans do not agree with evolution, 36% did not care either way. In June of 2007, a USA Today/Gallup Poll asked Americans whether a presidential candidate’s belief in evolution affected their vote. 54% of Americans said it made no difference, while 70% believe that is not even relevant.

As Darwin Day came and went on my campus, there weren’t public argument over the merits of evolution. There were the few that celebrated and then there was everybody else, the people who probably couldn’t care less.