Pick the Right Protection for Your Intellectual Property

You've probably read dozens of those breathless "the future is now!" articles about digital media production — you know, "Today's accessible desktop tools have enabled artists and fans to share art in amounts and ways (legal and otherwise) that would have been inconceivable just a few short years ago."

Nothing wrong with that. But today we're going to go further, to show that sharing digital art does not have to be as black-and-white as many people think. There are a million beautiful shades of gray between sending a cease-and-desist letter to everyone who even views an artwork and submitting to international peer pressure to give all your art away to everyone, forever.

This article swims in those grays, arguing that you should pick the right place on the continuum for each project, rather than have an immovable blanket policy on all artistic dissemination, staunchly defending your camp in an "us and them" manner.

Squat and Deliver

When I was touring the squats of Europe in 2003 on a self-booked tour with my first film, D.I.Y. or DIE: How To Survive as an Independent Artist, I often got an interesting mix of feedback in the Q&A after each showing. The comments ran from "How did you put this together?" to "Would you accept a million Euros to make a film?" (Answer: "Yes, under my own terms.") But almost every showing also had some crusty anarchist punker with some variation of "Why did you put the copyright notice at the end of the film? Copyright is stealing."

The film in question had already come out in 2002 as a DVD called DIY or DIE: Burn This DVD, of which I allowed — and often encouraged — people to make personal copies. (This was before I'd ever heard of Creative Commons; it was my attempt at inventing a system like that.)

Painter Mark Enger explains what's wrong with most art. (Still from D.I.Y or DIE.)

Yet I did consciously place a copyright notice at the end of the film. I like selling my art, and I like giving my art away. A copyright notice may not prevent people from making personal copies (nor did I care), but it might help if someone bootlegged the film, pressed 5,000 copies, and sold them. It also might have helped had someone inserted an ad for some company I hate and rebroadcast the film on TV. But it wouldn't help with everything, nor could I anticipate everything that might come up.

Pizza and Desire

I recall one evening in Lyon, France. The two guys who were putting on the screening took me out for pizza before the show. A few of their buddies tagged along. At dinner, one said to me, "I have seen your film, and loved it. I would love to put this on the Internet for free, if you will allow me."

I replied, "Let me think about that for a few minutes," and chewed my food. Conversation lulled around the table. Everyone was basically waiting for my answer. I quickly weighed the pros and cons, finished a slice, and finally said, "Yes, that's okay with me. Just let me know when and where and please e-mail me a link." (He never did e-mail me the link, though he did post my film.)

Then I paused, thought some more, and asked him, "What would you have done if I'd told you I did not want you putting my film on the Internet?" Without any hesitation he replied, "I would have put it on the Internet anyway, because this documentary is too important to not share. This film is more important than you as the auteur, and more important than your desires."

You gotta love the French. But I was flattered: in some sense, making a debut film that people are willing to defy you in order to propagate is hitting the ball out of the park on the first try. But in another way, I was taken aback, and so were a couple of my dinner companions. This quickly evolved into a debate, two of the guys arguing that this fellow was right, and two arguing that I had a right to choose when and where to give away my art. I stayed out of it, and listened to them go back and forth in English and French. I finished my meal, and we walked back to two smoke-filled showings of my film.

Gwar feeds the Pope to a dinosaur in this still from D.I.Y or DIE.

Scorn for Copyright Law

There is a great movement afoot in the world to reform or even destroy (or at least ignore) copyright law entirely. It is largely propagated by three camps. First are people who can't seem to make a living selling their content, so they are left with giving their stuff away and therefore think everyone else should, too. Second are people who do not create any content, or have a hacker/communist ethic that everything should be free and that property is theft (like the squatters who called me out for putting a copyright notice in my own movie). And last, and perhaps most vocal, are writers who make a living writing about other people's content. This includes many high-profile bloggers, and also people who run directories or somehow make their living linking other people's content.

I absolutely agree with three basic bullet points of all three camps. First, technology has changed faster than copyright law and the whole system needs some overhauling. Next, I agree that the huge brick-and-mortar international conglomerates that make their living by owning content created by others are headed the way of the mammoth in the tar pits, and new models are going to replace them. And finally, I agree that just because the piggy copyright banks of the old economy were on top for the past 90 years doesn't mean they are guaranteed the right to continue, unless they change and keep earning their place.

But there are two places I disagree strongly with the three camps described above: I do not believe that property is theft. And I do not believe in a "one size fits all" solution for content creators who administer their own intellectual property.

Creative Common Sense

The most famous alternative approach to copyright is Creative Commons (cc), a new way of putting varying types of protection on work you create. There are six different levels of "licenses," it's free, and anyone can do it. In fact, many people are. Creative Commons can vary from practically giving everything away to the public domain to giving your art away but allowing people to make derivative works provided you get credit and the derivative work itself is released as Creative Commons. However, no matter which license you pick, you are allowing people to make copies of your work for free.

Some people claim to be making a living doing this. Some people release their books, music, and films for free as electronic downloads (of the complete work, not just a sample), but also sell hard copies (printed books, CDs, and DVDs). But most people who claim to make a living doing this are really making the bulk of their money doing something else, such as consulting, lecturing, or teaching. (Also, an inordinate number of them seem to do UNIX programming or UNIX network administration.)

Some of the people who say they make their living with this free-and-paid model are also the people who shout, "Copyright is theft!" the loudest. And many of them really make most of their money commenting on other people's content (in print or on high-traffic ad-supported blogs).

Killian MacGeraghty of the Gun and Doll Show hangs out in his band van, where he may or may not have been living when this movie interview took place.

Pundits, Intellectuals, and Dumpster Divers

I've done practically everything you can do as far as different levels of copyright/copyleft and free-vs.-pay schemes for music, books, and film. I've been signed to Warner Brothers. I've been signed to indie record labels. I've put out vinyl records myself on my own label. I've released a film as a DVD with no region encoding, no copy protection, and subtitles in five languages on one disc. (Commercial DVD releases would never allow any of that, as it makes it harder to pre-sell different parts of the world.)

A pub audience in Sheffield, England, about to watch the film.

I've written books on an advance, sold the copyright to the publisher, and received continuing quarterly royalties for the books. I've self-published a book and sold copies out of the trunk of my car. I've given away a book for free on the Internet, with the Quark source files free for download under Creative Commons so anyone can translate or "remix" the book, and still got paid to write the book. I currently do two weekly podcasts that I give away for free, and I am not seeking advertisers for them. (As I like to say, I'm maintaining my amateur status so I can compete in the Olympics.)

And in each case, with every project and every medium mentioned above, putting the project out exactly as I did was exactly the right thing to do, for that particular project.