Pile of Mulch and the Creative Commons

In September 2004, I posted a brief story about a honkin’ pile of mulch that had recently landed in our driveway, along with a couple of quick snapshots.

Five years later (i.e. last week) I was contacted by a nice woman at a film production company who were making a film for Microsoft about a Boy Scout tracking mulch sales with an Excel spreadsheet. They wanted to use my image in the film and were prepared to pay me $250 for the rights to use the photo. While flattered, I have serious ethical issues with both the Boy Scouts (of today) and Microsoft, so my first inclination was to go ahead and take the money. But I have another ethical issue that outweighs those – the idea that I deserve to be paid for a snapshot I took four years ago.

I am not a professional photographer, and I did not take the photo with artistic or resale value in mind. The photo was only taken to support that brief blog entry. Its small amount of value was used up in that post, and I was paid for my small efforts with the equally small amount of attention it received (yes, we live in an attention economy now).

In my work, I benefit tremendously from the efforts of people who give away their work. My career would simply not be possible without the thousands of hours that have gone into Apache, MySQL, Firefox, PHP, Python, Django, etc. Likewise, I am studious about giving away the source code to the projects I put time into. I benefit from blog posts by people who are solving problems, and I try to repay that debt in some small way. In other spheres, all of this would be considered “intellectual property” with a monetary value. In the open source software world, it’s called “the free exchange of ideas,” and it makes the modern world go ’round.

I believe that we all stand on the shoulders of those who have gone before us, and our peers. Our culture is built on quotations – an endless re-use and re-mix of ideas exchanged between people. While I support an artist’s right to earn a living, I have serious problems with the idea that a 3-second snapshot is somehow worth more than dozens hours of time put into code. I believe an artist has a right to be paid for their initial work, but not to be paid again and again in perpetuity for that work. If an artist wants to keep making money, they should have to keep doing new work, like the rest of us laborers do. The idea that a person can put work into something once and then feel entitled to keep making money from it forever feels unfair. It smacks of a world that values money over ideas. That’s a problem I don’t want to be a part of.

I feel that copyright should exist for a very brief period of time — just long enough for the artist to recoup their efforts before moving on to the next thing — not the 70+ years Disney has pushed it out to. How long should that period be? I don’t know – I suppose just long enough so that consumers don’t say “I’m not going to buy that record – I’ll just wait until it enters the public domain.” So… five years? Maybe. Why are we still battling over the hugely valuable Beatles catalog? The band isn’t even together anymore – that music should have entered the public domain decades ago.

Cc-Attribution To accept money for this snapshot would have felt hypocritical. A couple of friends worked on me last night, trying to convince me that the marketplace, not the creator, should set the value for the work. Their arguments almost worked. And of course the money would be nice. But in the end, I decided to stick to my guns and publish the piece on Flickr with the attached Creative Commons Attribution license, which requires nothing but credit to the artist, even for commercial use.

I’m sorry to learn that the photo is being used by Microsoft and the Boy Scouts, but confident in my decision that to accept money for it would make me part of the larger copyright over-extension problem. If I believe that ideas should be free, and that a photograph is an idea, then I need to back up that belief by NOT accepting money I don’t deserve for for an old snapshot that took close to zero time, effort, or inspiration to create.

At bottom, I don’t feel that Microsoft or the Boy Scouts should have to ask for my permission to use the photo to begin with. They should be able to proceed on a cultural understanding that that photo is nothing but a speck of dust in our cultural landscape, and know that they can use it as freely as we use the English language in our daily speech. The fact that they “have” to ask permission is exactly what’s meant by the term chilling effects.

So, Julie, please use the image in your film however you like. A line of credit is all that’s required. As it should be.

Music: Ornette Coleman :: Sleep Talking

5 thoughts on “Pile of Mulch and the Creative Commons

  1. Tim

    Ah, this is interesting. If this were a regular TV commercial or print ad, one of the key points here is that they would also be buying the right to use your photo without having to give credit. How many advertisements give any credit to anyone involved in the creative process? (And would the fact that they’d be inclined to look elsewhere to avoid the complication mean that even requiring a credit could be (theoretically) construed to be a sort of chilling effect?)

    But since it’s a a promotional film, maybe they can insert a “Mulch Photo by Scot Hacker” into the end credits, if there will be end credits. Maybe they would have done that in any case.

    So any word on if they’ll use it?

  2. shacker Post author

    Good question Tim. Yes, my assumption was that credit would be in the end credits, not on-screen where the image appears. But you’re right, this would be problematic in a TV commercial.

    I wrote them yesterday with my response and a link to this post, but haven’t heard back.

  3. Lee Eichelberger

    Scott I don’t think you should have a problem taking the money. I think the intent of use is actually the main issue here. If the intent of use for your picture is for Microsoft to make money through promotion of the capabilities of Microsoft Excel, then you have just donated to the profitability of Microsoft or to the ad firm that is charging MS the money to do the promotion. In that case one man’s principle is another man’s profit. If this was say for a non-profit or personal use, then I agree – freely given for fair use is the way to go. But when you assist in a for profit enterprise and do not profit from it, then you are in the words of the street a suckah. Particularly when the party making the profit has no interest in open source as a philosophy. I would guess that MS is so open source averse that they would actually rather pay you than take it for free. In fact from what I know, it may actually worry them to not pay.

  4. shacker Post author

    Lee – Yep, that’s the biggest raw spot in my position, that in this case MS will “profit” at my “expense.” Well, not really. Their film isn’t going to do better or worse depending on whether they include my image. And there is no expense for me – I’m no poorer by giving it away than I was before. But regardless, I see your point. Still, I think we have to look at a question like this as abstracted away from any particular individual or corporation, and to see it in its most general terms. If the world I want to see is one where no one has to worry about where something came from in order to re-use it, then that principle will remain true regardless who profits or does not.

    The other dilemma is that a lot of people are encouraging me to take the money and give it to charity. In fact, I’ve now been contacted back by the firm and they’re suggesting exactly that. This idea is partly appealing to me, but in the end it ruins the argument, since in that case money will still have traded hands, and it underscores the idea that the photograph has some monetary value.

    Urgh, money and value are such strange and difficult concepts. This “experiment” in pushing the “information wants to be free” position as far as I can has been interesting to say the least. I’m not sure it’s a sustainable argument but it’s been interesting to try it out.

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