Who Owns Art?
Who owns a piece of art work or an idea once it has been shared? On another thread about defining "Conservatism," I took issue with the following statement by Nathaniel Wright.
"To people like Cory Doctorow, the internet demands that all creative works be shared -- for free -- whether the artist desires it or not. If one has no right to one's own creations, what rights do they have?"
I take some issue with the concept that art belongs to the artist. Once the art has been displayed and presented publicly, it belongs to the public. The artist should be allowed to profit from their art, but they can not really claim to own the line, color, sound or words of their art, nor can they claim to own their art in perpetuity.
This is a strong contention I have with many libertarians about intellectual property. Many, I have found, seem to ascribe to an absolutist view of who owns ideas and art. But, ideas and art are too amorphous to be treated with the same set of rules one would use for apples and oranges.
What do I mean by my contention that art can not be treated the same as material goods when it comes to ownership? First off I would like to define some things. When I say art I do not mean the physical media that it is presented in. The "art" of the Mona Lisa or Beethoven's 5th is not contained in the physical canvas and paints or in the CD. It is contained in the shape, color, and sound respectively. Thus art is really an idea more than a physical thing. Having once seen a painting or heard a song a person can recall that same art to them. They may even be able to reproduce the art by certain if not exact means for others.
The absolutist view of ownership of ideas wants to treat "art" and "intellectual" property in a manner similar to the way we treat a piece of land. Some one owns this land and no one can step on it or use it without permission, and its owner has the right to sell it or not to whom ever he pleases.
At first this seems wise and fair. After all it is the way most things are dealt with. But, one must realize that an idea is not the same as a piece of land. There is no limit to the number of people that can hold and know one distinct idea. In fact when ideas are utilized and exchanged they are not in fact taken from the previous owners. This is to say that once an idea is shared it is actually copied and the copy is transferred. In the end both people now have the same access to the same idea. A piece of land is obviously not the same way. It can not be give from person A to person B with now both A and B having the land.
Thus when one "steals" an idea or piece of art from its owner one does not deprive the creator or previous owner of that same art as would be the case if one stole an apple. What is meant by "stealing" in this case seems to me to be "diminishing the theoretical profits of the creator or owner of the art." In the case of ideas it is profiting from the use of the idea without sharing the profits with the ideas owner. In such a case it does not even require that you cost the owner profit that he would have expected, but rather that you made profit by means of their help. (This isn't in any way an accurate depiction of the current legal view of these matter it's just my interpretation of them. So I welcome some lawyer enlightening us all about the actual current laws and legal thinking on this matter.)
I think it is important to allow artists and inventors to profit from their ideas, so that they can continue to keep generating more ideas and art. So I do believe that one needs copyright protection and patents to help direct profits to the creators and facilitators of art and ideas. Patents and copyrights are mechanisms we as a society have instituted to help reward creativity and encourage it. Yet, if patents and copyrights are taken to their ultimate libertarian conclusion they become hindrances to creativity and innovation by allowing people to own ideas and art in such a manner as to prevent their utilization or dissemination.
So, while we should have patent laws and copyright laws. I think that all patents need to have a hard expiration date. I think that no company or person should just be able to deny use of a patented idea to prevent a competitor from launching a new product or developing a better product. There should be some sort of forced profit sharing, or licensing agreement, but no outright stifling of innovation. I think all works of art should enter the public domain after a specified amount of time. To prevent individuals or companies from essentially monopolizing and profiting of the shared culture in perpetuity.
I know that many people on this site with strong libertarian feelings will read this and feel outraged, but I ask you: How do you prevent an idea or information from spreading without approval, and are those means more inline with your ideals?
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Comments :
Oct '10
Re: Who Owns Art?
I claim no expertise in the law regarding the principle of patents and copyrights, but to my understanding it all turns on the issue of commerce. Does anyone other than the owner of the work deserve to benefit financially from it.
The inventor owns the idea as long as the patent is in force. I believe it is 17 years and can be extended by renewal for an additional 17 years before the invention is in the public domain. Why would a person undergo the years of effort and the legal process of patenting if he has no exclusive rights. A private individual can build and use a patented idea as long as he obtains no financial gain from his efforts other then personal use.
Copyrights are no different. The creator of a piece of music, a manuscript or even a recorded performance has exclusive ownership of the product of his mind for commercial purposes. Again, one can play copyrighted music for his own use, but not in commerce. Churches run into this problem all the time when they xerox music for the choir. They violate the author's exclusive ownership.
Why would anyone have a problem with the ownership of one's efforts?
Edited on Oct 25, 2011 at 7:15pmMay '10
Re: Who Owns Art?
As someone in the "creative community" and also a conservative, I am of two minds on this. I believe that everyone should be able to profit of their creativity. But not open-endedly. Rogers and Hammerstein are dead yet their songs are still tightly controlled copyrighted works. Why? At what point should their works we free and available to all instead of enriching someone (even blood heirs) that contributed nothing to the artistry?
Aug '11
Re: Who Owns Art?
I've had a post stewing on these same subjects, and I see I'm going to have to rush it through soon.
I believe in strong copyright laws, and I think of the Cory Doctorows of the world as little more than common thieves. You say that art can not be treated the same as material goods when it comes to ownership. I say why not?
Let's say you build up a successful retail business, pour your whole life into it, pay taxes on it, pay taxes on your profits, pass it along to your children . . . but then 70 years after you started it, the state comes in and just takes it. "Your store is ours now," they say. "Your rights to it have expired. Your retail establishment now exists for the public good."
At least copyrights last for 70 years. The Cory Doctorows of the world would confiscate your life's work far sooner -- if they let you earn anything from it at all.
Edited on Oct 26, 2011 at 6:51amAug '11
Re: Who Owns Art?
I'm not convinced of this. A couple of James Lileks' early novels are now out of print, their brilliance hidden away from the current generation. How does it hinder my creativity to not be able to read them?
But if we forcibly release them to the wild, like some sort of Literature Liberation Front, how does that help James provide for his child's education?
Nathaniel had it right in the other thread. To argue against copyright is to favor the collective over the individual.
Edited on Oct 25, 2011 at 9:03pmApr '11
Re: Who Owns Art?
How does it hurt James Lilac if his out of print books are now published again. Currently he is getting no money for them. So if they were published by a third party and sold he would still receive, no money from them. Yet the benefit to the new readers is clear. They get to read a book that they other wise might not have been able to read. The benefit to Lilac is recognition of his work and name is further spread potentially increasing demands for his newer books.
Also if you treat intellectual works the same as that store, does that mean that upon the death of an author their next of kin inherit the writes to their work? Are the decedents of Dickens being robbed by the free copying of their ancestors work?
Like I said in my post intellectual property differs from other property in that its intangible nature makes it uncontrollable like normal property. Also the maximum benefits of ideas are obtained when they are allowed to free reign of implementation and diversification. Restricting access to ideas lowers the levels of over all creativity and innovation, and thereby hurts consumers.
Apr '11
Re: Who Owns Art?
Why would anyone have a problem with the ownership of one's efforts? · Oct 25 at 7:11pm
Edited on Oct 25 at 07:15 pm
Allow me to pose an example:
Say you invent Widget Mechanism A. You use this to launch a series of automated widgeting machines people love them you grow rich. Now your competitor Mr. Briliant sees a new use of your invention. He utilizes it to make an Analog Widget Sorter. This machine would solve many widget problems and is sure to improve efficiency in other fields. You deny him the write to use your patent because it would help your competitor. The Analog Widget Sorter is not put to market and economic inefficiencies continue. Is that a good thing for consumers for the economy? It may maximize your profits to kill your competitor, but that does not mean it is ultimately efficient for the market as a whole.
Your example of the Church proves my point actually. Should a Church really be forced to alter its play list to comply with copy write laws, even when it does not profit from the playing of the music? Who is hurt by the churches action?
Apr '11
Re: Who Owns Art?
Copy write fanaticism also has other problems, owing to modern technology. If I own a book I can lend it to any one I choose. I think all would agree it is my right to do so. I bought it. I own it, and its mine. Now suppose I bought a digital book. Do I own that? Suppose I wish to lend it by putting it on an open server from where all my friends at once can look at the book. Is that illegal. Should it be? What did I buy when I bought that digital book. Did I buy those words? The right for only me too look at it? Such questions vex companies and publishers and authors to some extent.
The modern world facilitates the transfer of ideas better and faster then ever before. The spread of ideas is vital to a vibrant and creative society, yet now people are looking to use the law to hinder that spread. I ask where should that line be drawn? I find that as I favor the spread of ideas over their control. The libertarian line I think fails to take much of this in to account.
Sep '11
Re: Who Owns Art?
I consider myself to have a very strong libertarian bent and am not remotely "offended."
Actually, there is a deep divide among libertarians (isn't there always?) about intellectual property (IP). The Mises Institute has a book available (freely ;) ) titled, Against Intellectual Property, which contains a chapter summarizing libertarian views on IP.
IP rights strike me as counter-productive. The barroom example is the information technology explosion predating the expansion of IP rights to cover computer code. Comparatively, innovation in that field has slowed to a snail's pace since the Supreme Court granted that patent law applies to computer code instead of the more broad and much less enforced copyrights that had earlier been the norm.
IT firms now devote more resources to protecting their monopoly rights, indeed that is what they own, than before that revolution and much fewer resources to R&D. The standard line is that IP rights drive innovation by creating a profit motive for innovation, but that ignores and dilutes the profit motive extant in being first to market.
IP is a non-scarce resource. IP rights are essentially analogous to a cap and trade system, we should know the inefficiency of that.
Apr '11
Re: Who Owns Art?
One last point:
At what point does a work of art become so integrated into the fabric of a society and culture that it becomes inseparable from that culture? At that point, does the society at large not have a greater claim to the distribution of that piece of art than the creator? What I mean is this. Who owns "God Bless America" the American society as a whole or the grandchildren of Irving Berlin? Now I think legally it is in the public domain, but suppose it wasn't. Suppose the writer of a Christmas carol becomes an atheist and then demands that his music no longer be played by religious organizations. I argue that once you have created a work of art that is so wide spread and ingrained into the fabric of a society you loose all pretense of ownership. You can't own the culture of a nation, it belongs to every one.
Edited on Oct 25, 2011 at 8:54pmAug '11
Re: Who Owns Art?
To what end? If his newer books are likewise forcibly released, copyright free, into the wild, he won't be allowed to profit from them either. Where is the incentive to create anything?
Which doesn't mean we shouldn't try. I realize it's more difficult in the internet age, but if some technology was invented that made door-locks obsolete, does that mean that burglary is now acceptable?
Respectfully, this sounds like academic mush to me. Benefits for whom? Obtained by whom? And again, I have to ask how my creativity is stifled by not being allowed to read a particular out of print novel?
Are consumers harmed when they want something they can't otherwise get?
Apr '11
Re: Who Owns Art?
Drew:
I don't argue that there should be no copy write protection only that it can not be perpetual, and without limit. Mr. Lilac should have exclusive rights to his new books for a time. After they have gone out of print, then any publisher should be able to reprint them, translate them and make them available to new audiences.
As to burglary. Like I said information that is "stolen" is not stolen in the sense of a TV you are not depriving any one of that information. Unless you find a way to erase their access to it. Normally you are just copying it.
Academic mush??Eh.. How is your creativity stifled by not being able to read an out of print novel? You have never been inspired by some one else's story telling? You have never read a book so good it made you want to draw and illustrate a scene from it, write a song about it, or just write you're own response to the themes and questions raised by that book? Maybe you would like to continue the story where it left off, or explore what happened before it? Creativity needs inspiration.
Aug '11
Re: Who Owns Art?
Valiuth:
As to burglary. Like I said information that is "stolen" is not stolen in the sense of a TV you are not depriving any one of that information. Unless you find a way to erase their access to it. Normally you are just copying it.
15 years ago, give or take, I wrote a feature for a regional magazine highlighting one of our state's historical sites. Put a lot of work into it. Took some photos. Got paid. It was a periodical so it was technically out of print the moment it hit the news-stands.
Last summer I was paging through a different periodical -- a paper highlighting "things to see up north" while one is vacationing. I discovered my article -- chopped up a bit and condensed for this paper -- but I'd estimate that more than 90% of it was plagiarized from the feature I'd written 15 years ago.
Plagiarized. Copied. Stolen. Does it matter that the original document (existing digitally on some hard drive) was never actually taken from me? The results of my work were being used by someone else.
Aug '11
Re: Who Owns Art?
By the way, though I disagree with you, I want to thank you for bringing up the subject. It's one that (obviously) interests me greatly. I'm only upset that I haven't had time to finish up my own longish essay (or potential book) on the subject.
Edited on Oct 25, 2011 at 9:51pmSep '11
Re: Who Owns Art?
Drew, in that last anecdote you've exemplified the workings of an IP free, free-market. This may be simplified, but basically you had the manuscript in hand and sold it to the magazine. There was no necessity for an IP right there, had they wrested the manuscript from your hands it would have been theft on its own. If you really wanted to, you could have signed a contract with the periodical before you wrote the piece.
Moreover, you never imagined your piece would one day be republished, so there was no additional incentive to your creative work, yet you wrote it anyway. The plagiarism was not a real loss to you, you would be no better off had they not plagiarized you. They could have had the decency to cite you, but beyond that, I don't see the real harm, likely, they were afraid to cite you because of a fear of copyright infringement repercussions. Finally, the nature of the medium, i.e., periodicals are printed and forgotten, is pretty much what I meant earlier by a firm being "first to market" is itself a profit motive.
Apr '11
Re: Who Owns Art?
Let me start of by saying plagiarism and re-distribution of work are two different things, in my opinion. Plagiarism is the appropriation of some ones work as your own. Re-distribution is republishing a work without the authors consent. I would never advocate as a legal action the whole sale copying another persons work. I view that as a kind of fraud. Though I guess recently there has been the trend of adding extra passages to famous literary works, ie. Pride and Prejudice with Zombies. Though I feel in all these cases there is care taken to explain the nature of the adaptation, and give credit to the original author.
So back to your stolen article. I assume they didn't give you credit as the author? But, supposing they had you would still not be happy with their use of it. Had they come to you and asked you to publish it would you have given them permission if they could not, or would not pay you? Also if you write an article for a journal who owns the article the journal or you? In science the journal owns the article not the author.
Mar '11
Re: Who Owns Art?
Dang it, always coming to the conversation too late!
I am not an IP expert (although as a researcher I should know more about it), but I think we need to view artwork, which is almost always only consumed, and technical innovations, which can be built upon by future generations, in different lights.
When it comes to technical innovations, future developments are often built directly upon the ideas of past patents, and therefore Valiuth is correct that patents need an expiration date.
But most artwork or creative content is stand-alone: while the Rolling Stones might have been inspired by Muddy Waters, they didn't cover his songs on their albums. Certainly the fact that Muddy Waters' LP was copyrighted, and that Mick Jagger had to pay a few dollars to buy it, didn't prevent him from doing so and building upon those ideas.
On the other hand, without copyright protection, the blues artists who inspired the Stones and their contemporaries probably never would have been played in the UK, thus precluding their own "contributions" to society.
Mar '11
Re: Who Owns Art?
I don't think this argument can be used with modern web-based content.
Many people are now publishing their own material online on their own websites which derive their profit from advertising based (directly or indirectly) on page visits. If another website copies that content immediately after publication on the original website (a common occurrence nowadays), the author will lose page visits, profit, and thus incentive to keep producing new content.
Being first to market does not matter much if the second to market appears five minutes later using your material.
Apr '11
Re: Who Owns Art?
I read a very interesting article once (wish I could find it now...) on IP in the magic business. The thrust of the article was that since you can copyright the writing of a trick but not the performing of a trick, magicians have very few legal protections for their work. So they developed social protections to compensate. They thoroughly and severely ostracize any magician who dares to copy another magician's work. These social sanctions for IP violations are very effective.
So even if we don't have legal protections for IP, we can still enforce the kind of rules that encourage people to produce IP, in the right social environment. (Whether we currently have that kind of social environment, or could "get there from here", is certainly debatable.)
Aug '11
Re: Who Owns Art?
Gabriel Sullice:
The plagiarism was not a real loss to you, you would be no better off had they not plagiarized you.
My point here was less about the loss of potential earnings than about someone else benefiting from my work.
My work is not a "group project." I mean for it to benefit me, my family, and whoever I choose to share my pitiable wealth with. And thought it is true that, out of print, nobody is benefiting, the author retaining his copyright has the ability to get the book back into print and attempt to turn a profit with it again. The enemies of copyright say that it is better to release out of print materials into the public domain so that everyone may benefit. Why?
And to the question of plagiarism, apart from the question of profit and loss, why have we decided, as a society, that plagiarism is wrong?
Apr '11
Re: Who Owns Art?
Mendel: The Copy write law does not only prevent one artist from reproducing another artists work without permission but also prevents and artist from creating derivative work from work not his own. So If I see a movie and I like it I am prevented from making my own sequel of it, without permission. Thus in that way it can in fact restrict the generation of creative out put. Since there is no guarantee the original author will either grant permission or themselves produce more similar works. Think of all the retelling of public domain stories. The constant reinterpretations of Romeo and Juliet of the Arthurian legends, and the Odessy. If copy write law existed the way you wanted it to since the beginning of time, James Joyce would not have been allowed to write Ulysses. What great reinterpretations of modern works are we missing out on, because of this restriction?