Monday, May 14

The copyright con game and the new economics of IP

A VERY well known and very popular icelandic photographer on flickr, Rebekka Guðleifsdóttir who has recieved a lot of recognition for her self portraits, Icelandic landscapes and doing some innovative advertising work for Toyota caught an otherwise reputable art dealer in the UK red handed selling her landscapes on their site and ebay. She's chronicled almost $5000 worth of sales of ebay alone. The story has received a LOT of attention on digg and other online news sites, but that isn't even the half of it.

Like every good story, this one has a twist.

According to a commenter on digg, the company claims they were conned. They were sold the photos as part of a collection. Even though it IS ultimately their responsibility to make sure rights are cleared and the company their dealing with is ruputeable this brings to mind some VERY serious issues about the sale of intellectual property. In the old world the owner would always have the negatives but with digital photography there are no films and no negatives. So how is a company supposed to ensure that the people they're buying the photographs off of ARE the rights holders and owners of the photos?

From the comments on digg
I emailed them, this is the reply I got (almost immediately):


Hello Dave.Many thanks for your email.

Can I start by saying there are 2 sides to every story and I will try to tell you our side.

In August 2006, we were contacted by "Wild Aspects and Panoramics LTD" a company based here in London, they offered to show us some imagery, that they stated would be high resolution and we would have sole reselling rights.We were visited by a salesperson from the company and we liked what we saw

Anyway 2 weeks passed, emails were sent back and forth,basic research was done by us to enable us to resell them and then the paperwork was signed and a considerable amount of money was paid(£3000.00)by us , for us to start selling these images in the form of canvas prints.

6 months later we had a letter from a law firm in Iceland, stating we were using someone's images, we googled the claimants name, lo and behold we found we had been duped!.

As requested we immediately removed the images from the internet and destroyed any copies of the images we had.

We emailed the law firm to state we had dealt with these requests and to apologise to their client.

We took legal advice, they told us say nothing more than we had, not reccomending we contact the claimant and tell her what had happened, by the way we were very keen to do that, but we were told to avoid all contact.

In the meantime we started our own investigation into the above company's contacts and sources but have since found nothing more because the telephone doesn't get answered, mobiles are permanantly off and emails are getting bounced back, it seems we were conned too.

As digital artists and designers, we know the importance of integrity, hence the immediate halt and removal of images from the internet, if we had no morals, surely we would still be selling them to recoup our costs?.

As Rebekka has now decided to make this public, we can set about explaining to her why this has happened and of course, to apologise.

Many thanks O-D
Our response will be sent to rebekka first, if shes happy with it, it will get posted up.

The only solution I can come up with is, deal with a reputable sources, but that only works when dealing with third parties. There are hundreds of thousands, even millions of independent photographers out there. The only way I know to validate ownership of digital photos is to present the unaltered and UNPUBLISHED series of shots before and after the photos being published at time of sale. But even this is not an absolute, nor is it easy. Many photographers throw out unused shots.

The only other advice (besides purchasing from reputable sources) is companies start demanding indemnification clauses in purchase contracts should the rights of materials come into question so that the 3rd party or photographer who sold them the pictures is required to take the legal burden.

Of course none of this will help Only Dreamin UK, their ass is grass as the saying goes, whether they were victims of a con or not. I'm certain the photographer Rebekka will eventually get her monies worth out of them, but it's no picnic for her either.

One piece of advice to Rebba and all FLickr Photographers. I ABSOLUTELY LOVE highres photos, props to all you who like me make your high res versions available on Flickr. ALWAYS HOLD SOMETHING IN RESERVE! If you have a 8mp camera only post a 4mp image. Personally I tend to publish most of my photos at 1600x1200. It's perfect for desktop and screen viewing and yet if someone wants to buy, sell or publish they're probably going to need the original.

This is not just great for photographers but ALL artists. Musicians publishing mp3's on their sites have become commonplace. There's absolutely no reason though to publish the 256bit version of your song. Not only does it eat up more bandwidth, but the people don't care enough to buy your music won't care anyway. Publish the 128 bit version (or lower) and keep the 256 to sell to those who love your music enough and care enough about the quality to bother buying it.

It's no secrete, fidelity and experience are the key to the new value chain. On some level all IP in the future will be free. Not just because of P2P, and not just because it's a great moral imperative, but because it makes great economic sense. You can't sell a photograph without making available a decent size still freely available for viewing and hence downloading on the web. You can't sell music without allowing people to listen to it (and hence download it). This is a given, on some level all intellectual property will be free, it must be free. Put that in your notebook because it's a fundamental property of the new world order and the new world economy though obviously many in the media world of old (RIAA / MPAA) still have yet to grasp what this means.

Some examples...

The 1600x1200 version for your desktop on your computer mill be free, and if you want to print it out in 8x10 color, also free, but the 20x30 print for your wall.. that'll cost you. Want an image for a billboard or ad campaign, better be ready to shell out some major bucks. The better the experience, the more the fidelity, the more it's going to cost you... and don't forget to buy the t-shirts, posters, concert DVD's, coffee mugs and other merchandise to bring Johnny out of the headphones and into your world.

The same goes with music... and for many, many artists this is already true. Care to listen to that new album by Johnathan Coulton, th 128 bit is free. You can buy the CD, or 256 bit from CDBaby, iTunes, or any of various e-tailers. But if you really want to *experience* Johny, you'll buy a ticket to one of his concerts.

Filesharing is not simply music theft, it's just the new world order knocking very loudly on the door of those companies to stupid to understand reality. Like prohibition the black market will probably all but dry up as legal alternatives and higher fidelity options take shape. When you put the entire album up on your website in 128bit mp3's, and sell the 256 bit versions on eMusic, CDbaby, or iTunes in mp3 or even a better format for anywhere from 25 cents a song to $1.29. Now we've got a working model.

I know I've said this 1000 times (quite literally), but it was Jack Vallenti former head of the MPAA who said, "how do you expect us to compete with free?"

I've been repeating this model of experience and fidelity nearly since he said that about 4 or even five years ago. What inspired me to rethink the "product", no longer shinny plastic disks but fidelity and experience, was not only Jack's statement but the thriving industry of bottled water.

Here we live in the U.S. A world where pretty much noone dies of thirst barring some extreme circumstance, water is all but free, it flows from public fountains, there's water fountains and public bathrooms everywhere, and yet the bottled water industry THRIVES! What does it thrive on! It's 100% all in how you package it and how you experience it of course!

1) PORTABLE, and CONVENIENT TO ENJOY... People buy bottled water first and foremost because it's conveniently packaged. The package ALLOWS us to carry it around, it makes it PORTABLE. Notice anything similar to the mp3 vs. DRM debate here? It's no secrete that the CD is completely out of date. No one caries around CD players and a whole host of CD's these days. CD's are a "package of inconvenience". The exact same can be said of DRM formats like Windows Media, Plays-for-sure, and Apple's Playfair. Why in the F%*@# would we pay for things that make our lives less convenient and more complicated!? This packaging is analogous to putting in a quarter at the water fountain, especially music services like Real Player Rhapsody, the new Napster and a whole host of others. Drink as much as you like, just as long as you're at the fountain, but you can't take it with you.

Noone gets this better than Steve Jobs who's spent the last year lobbying EMI and other major labels to sell non-drm music. They're selling it at a premium too! And it WILL SUCCEED!

2) CONVENIENT TO PURCHASE... We buy it because purchasing it is more convenient than the alternative.. It's easier to find a gas station with bottled water than it is to find a water fountain or get water out of a sink faucet somewhere.

Again, compared when you look at the music world. The standards have changed and the industry has not. What could be less convenient of an experience than having to go to a music store, or worse, having to download or run some special piece of software or hardware just to be able to purchase music. It's simply easier to hit to look for that latest album. In many cases faster to download too. This is not to say sometimes we don't enjoy the experience of a music store, but for the most part... the idea is dead. Music is above all about convenience. We want it when we want it, where we want it and how we want it. For most of us that will purchasing it off whatever web based retailer we prefer, whether it be emusic, amazon, or otherwise, downloading it immediately, no matter what computer we're on... wether a public lab, home or work, and putting it onto our music player wether the awesome $10 GPX FlashSD unit someone showed me the other day day or a 80 gig iPod, which is quickly becoming the Cadilac of media players. And let's not forget how we listen to it... in the car, on the subway, EL, bus, train, or plane.... ironically... the home entertainment center is the last place we listen to music these days. The best thing about music its portable... if we're sitting at home and are going to be tethered to a computer or the living room that time is increasingly occupied by visual media that requires our full undivided attention. Music's place in the world is on the go.

3) It's a KNOWN EXPERIENCE... It's the same reason we buy Starbucks or McDonalds, we buy bottled water because we know whether we buy it here or in Canada or Europe that Evian is going to taste like Evian, a Starbucks Mocha Frap is always going to taste like a Starbucks Mocha Frap. (If this isn't true... then someone's got a major freaking problem with their brand!) There is no mistake here... Starbucks strategy is to make their coffee shops so enticing an experience that that they will literally become the "third place" in your life. Home, Work, and Starbucks. Though not for me, god bless them for trying, I still enjoy them a lot more than I enjoy Dunkin Donuts or McDonalds. Come to think of it, I can't remember when the last time I bothered eating or getting a coffee at either of those two places.

What is the known experience the music industry is selling us. A scratched CD!? A static-y radio that fads in and out with all sorts of commercial interuptions? What about the digital music experience sold to us by the mainstream industry? Special software that we must install and learn how to use? Music that will only play on certain computers and devices? Lack of choice? The options the mainstream music world offers us are anything but a known experience. For all but the most technical among us (ironically those most capable of using file sharing), the mainstream music world offers us an experience that is an UNKNOWABLE EXPERIENCE. Want JayZ you have to buy from iTunes... the Beatles, classical, folk... who the hell knows where to buy them. Around every turn is a new twist. Every interest requires a different piece of software, a different player, a different store.... but only one peer-to-peer network.

The future is this... if I like Amazon, my music better be available via amazon. If I like the Apple Music store, don't expect me to visit amazon. If I like my iPod, it better play on my iPod. If I like a $10 GPX FlashSD mp3 player that plays for 18 hours on a single AAA then it better play on that. If I want to listen to it on a plane, train, subway, ell, or my car stereo it better work there too.

This is why web based musicians, p2p, mp3, and podcasting are the present and future, and why they're kicking the snot out of radio, CD sales and the whole traditional music world... and it ain't caus' they're *%$^%$ free. When you pull your head out of your *ss and look at the thriving succes of the $5 coffee undustry, and $1.50 bottled watter industry you realize the future why the future of music is more bright than it's ever been in history.

Where's my convenience!? anytime, any computer, any media player, any software... my choice of store... amazon, itunes, emusic, cdbaby or even the real world... downloading the entire album for free at 128 bit to see what I like on my way to work.

Where's my portability!? it on my car stereo, ipod, $10 generic Flash player, my home stereo, work computer, home computer, my friends care stereo or home computer... the subway... where there are no wires and no airwaves.

Where's my fidelity!? ...not just 256 bit mp3, but what about multi-track formats, lossless compression, enhanced Dolby or other imaging, or even buying the tickets to hear it live!? Give me a REAL reason not to buy it in simple mp3.

Where are my great experiences!? ...from concerts to purchasing experiences... where's my concert hall, intimate club experience, my starbucks of music stores (oddly starbucks has started it's own label), my choice of online purchasing experiences.

Where's my great packaging!? ...flash cards, thumb drives, posters, videos, Why not just simply sell it ON it's on $10 mp3 player branded for said artist!? (Why not, flash based mp3 players cost less then most albums now.)

The point is that now that words have left the page, art has spill from it canvas's and music has escaped it's little plastic discs it can now take any form it wants in the world. It's truly a brilliant time. Now that music and film are as free to create as it is to transmit... mearly as free as a no.2 pencil we can now re-imagine music and media and shape it into nearly any form we can dream. Wether that be a pair of sunglasses like Oakley or cute little brick like apple's iPod or iPhone or a pen, or whatever we like. It's truly a wonderful time to be a consumer and a designer of musical and media experiences.

What's this got to do with copyright infringement and stolen photos? The more reasonable options the artists (and above all the middle players) the less like copyright infringement is to be a problem. You don't have to give away the whole enchilada for free, but you also don't have to demand it be eaten at your restaraunt with your silverware, drinks and sides. Give them takeout, package it, sell it in a variety of stores, in the most convenient form possible. This goes for you two you television basket cases... clip culture is a beautiful thing.

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