The "Two Art Guys" is something my good friend (and fellow Artist) Mike Segal and I started a long while back - kind of like the two old guys sitting in the balcony on the "Muppet Show", or a couple reviewers putting in their two cents on the state of the art world relevant to the moment...
One such discussion we have had in the past I believe is appropriate now more than ever with regard to copyright and the Orphan Works Bill - it has to do with something we (as well as others) refer to as the "Artist Code" - in understanding our place as Artists in this society and how deeply ingrained that is, this should as a whole make us appreciate how important it is we do not surrender our rights, or our place in society to something as insidious as this Orphan Works Bill. Artist's are the collective conscience of humankind - we cannot allow that freedom to suffer the bias of an economic mandate - creativity is our last inherent freedom.
The relevance in this essay is two fold - one; it shows the importance for a unified effort to defeat a common foe, all personal issues should be set aside - two; it speaks to our (Artists) importance to society - It is said; "Knowledge is power" and hopefully in understanding our place in society, this will empower us to defend and maintain our calling with a unified, positive outcome.
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The "Artist Code" is very simple, never do anything that will break the spell that artists continue to have over society.
Artists need to earn a living in order to continue their work. The more that society thinks highly of an individual artist's talent, the easier it is for that artist to earn a living. Society places a very high value on the criticism of a fellow artist since they think,"well they must know". Making derogatory remarks about another artist's work may diminish the targeted artist's standing in the mind's of society, but it also diminishes the general respect for the special talent that continues to mystify society. Therefore, when one artist negatively criticizes another artist to society, it brings the importance of the role of the artist, of all art, down and negatively affects the entire art culture. That is why it is wise to keep the public thinking positively about art in general, and to speak up artists that one wishes to help, but never speak poorly about any artist.
In other words, do not poison the well from which we all drink.
Why does the artist continue to have an elevated importance in society? We must look back to the very beginning of tribal existence, back 500,000 years to the point where groups of people began to live together in order to survive. The first humans needed to have some advantage over the biological/physical reality, they needed magic, spiritual power to bend reality toward their benefit. It was the artist/shaman , the visionary that visited the spirit world and brought back special powers that decorated the various implements of survival that gave these tools those special powers. It was the artist/shaman that was the first leaders, the go to guy, in primitive society. That is where this special elevated place of the artist in society began. This is the special place in the minds of all humans that continues to exist and is wise for the modern artist to play up that primordial thought imbedded in humans deepest psyche.
When stupid people go to sleep at night, they never wake up smart in the morning. To try to explain the anthropological information contained in this essay to a stupid artist is a waste of time. Knowledge is wisdom and it is wisdom that helps us to keep a positive attitude while living among some incredibly stupid people.
- Mike Segal
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Sunday, April 27, 2008
Orphaned Works Bill Resources
We have asked the leaders in the industry to keep us informed about this bill and to let us know exactly how, and when to act. We have asked them to post their findings here as a resource for Artists who oppose the bill.
We will also be posting informative links, opinions, rants, and writings from some of the most brilliant Artists and advocates working today.
Orphaned Works Bill Resources and Links:
Jonathan Bailey of Plagiarism Today is carefully watching this bill and has outlined the differences in the 2008 proposed bill as opposed to the 2006 version here:
http://www.plagiarismtoday.com/2008/04/25/orphan-works-bills-introduced/
Jonathan Bailey of Plagiarism Today explains methods that can be used to identify yourself, and protect your images here:
http://www.plagiarismtoday.com/2008/04/24/identify-yourself-protect-your-images/
Will the Next Generation of Artists Please Stand Up ?
In recent years, scientists have discovered that frogs and toads are becoming extinct worldwide. For those of you who do not enjoy eating frogs legs, this may not seem like too big a problem. However, frogs and toads have been identified by scientist as an indicator species of the general health of the environment due to the fact that they are especially vulnerable and are usually the first to disappear. This extinction of the reptiles will cause a broken link in the food chain and eventually have catastrophic effects on other organisms.
Last year while I was participating in the Melbourne, Florida art show I noticed, while standing in line before the show to get my information packet, that most of the artists were over 50 years old. In fact they were almost all over 50 and about half were over 60 years old. I had been noticing this aging of the sidewalk artist group for many years as I always enjoy looking at the new artists work, new ideas are always refreshing.
I participated in my first art show in 1973 in Raleigh, North Carolina while I was a student at the design school at NCSU. Back then, most of the artists doing sidewalk shows were in their 20’s and 30’s. This group is still out there, but the next generation does not exist, at least on the street selling art.
Once again, for those of you who do not like to eat frogs legs, this may not seem like much of a problem. But just as the extinction of frogs and toads is an indicator of the general health of our ecosystem, the extinction of the sidewalk artists may very well be an indicator of the general health of America’s art culture, because there is a tremendous cultural exchange that goes on at sidewalk art shows besides the sale of art. It is America’s “museum without walls”. The street shows are where the artists are directly accessible to the public, where they create an interest and excitement about their art and also provide technical information to the general public.
This is not a sort of, maybe, kind of, observation concerning the total lack of replacement artists in our art culture, it is a dead on reality, I am witnessing the end of an era. Perhaps easel painting and sculpture is an anachronism and who needs sculptors, and painters anyway?
When the camera was first invented in 1850, it caused a revolution in art that continues to reverberate today. The visual artists were no longer required to do portraiture, there main bread and butter. The new technology of photography took care of providing the public with portraits and thereby freed the painters up to explore new subjects. The first big movement was impressionism which began to treat color as an entity in itself. Then came the post impressionists, cubists, fauvists, on and on the art culture continued to grow, one idea growing out of the one before it, the evolution of the visual art culture.
Now we have a new technology, a new medium, computer generated art, and we are witnessing the pioneer stage of this medium. However, in 250,000 years there has never been such a complete break in the link of the art culture as has been brought on by the computer. Perhaps the computer will provide everything the art culture needs in the future and I should go back to the old folks home and mind my own business.
The school is still out on the effectiveness of computer learning when it comes to developing cognitive skills and hand and eye coordination. In fact there is very little research going on concerning the quality of creative growth by learning to draw on a computer compared to the more direct method of pencil and paper. Also, cutting paper to make a collage uses a different part of the brain than drawing with a pencil on paper.
There is no need to examine the comparison of cognitive development while creating collage or sculpture with ones hands and computer generated three dimensional images as there is no physical hands on experience to compare. They are as different as apples and jet airplanes.
The largest part of our brain is hooked up to our hands. The scientists are just beginning to learn what artists have known for 250,000 years, that our hands think. The more we use our hands to create art, the more our minds freely associate and our hands begin to take on a life of their own.
So before I go back to eating my porridge at the retirement village, I must ask the question, will the next generation of artists please stand up ?
Last year while I was participating in the Melbourne, Florida art show I noticed, while standing in line before the show to get my information packet, that most of the artists were over 50 years old. In fact they were almost all over 50 and about half were over 60 years old. I had been noticing this aging of the sidewalk artist group for many years as I always enjoy looking at the new artists work, new ideas are always refreshing.
I participated in my first art show in 1973 in Raleigh, North Carolina while I was a student at the design school at NCSU. Back then, most of the artists doing sidewalk shows were in their 20’s and 30’s. This group is still out there, but the next generation does not exist, at least on the street selling art.
Once again, for those of you who do not like to eat frogs legs, this may not seem like much of a problem. But just as the extinction of frogs and toads is an indicator of the general health of our ecosystem, the extinction of the sidewalk artists may very well be an indicator of the general health of America’s art culture, because there is a tremendous cultural exchange that goes on at sidewalk art shows besides the sale of art. It is America’s “museum without walls”. The street shows are where the artists are directly accessible to the public, where they create an interest and excitement about their art and also provide technical information to the general public.
This is not a sort of, maybe, kind of, observation concerning the total lack of replacement artists in our art culture, it is a dead on reality, I am witnessing the end of an era. Perhaps easel painting and sculpture is an anachronism and who needs sculptors, and painters anyway?
When the camera was first invented in 1850, it caused a revolution in art that continues to reverberate today. The visual artists were no longer required to do portraiture, there main bread and butter. The new technology of photography took care of providing the public with portraits and thereby freed the painters up to explore new subjects. The first big movement was impressionism which began to treat color as an entity in itself. Then came the post impressionists, cubists, fauvists, on and on the art culture continued to grow, one idea growing out of the one before it, the evolution of the visual art culture.
Now we have a new technology, a new medium, computer generated art, and we are witnessing the pioneer stage of this medium. However, in 250,000 years there has never been such a complete break in the link of the art culture as has been brought on by the computer. Perhaps the computer will provide everything the art culture needs in the future and I should go back to the old folks home and mind my own business.
The school is still out on the effectiveness of computer learning when it comes to developing cognitive skills and hand and eye coordination. In fact there is very little research going on concerning the quality of creative growth by learning to draw on a computer compared to the more direct method of pencil and paper. Also, cutting paper to make a collage uses a different part of the brain than drawing with a pencil on paper.
There is no need to examine the comparison of cognitive development while creating collage or sculpture with ones hands and computer generated three dimensional images as there is no physical hands on experience to compare. They are as different as apples and jet airplanes.
The largest part of our brain is hooked up to our hands. The scientists are just beginning to learn what artists have known for 250,000 years, that our hands think. The more we use our hands to create art, the more our minds freely associate and our hands begin to take on a life of their own.
So before I go back to eating my porridge at the retirement village, I must ask the question, will the next generation of artists please stand up ?
Wednesday, April 23, 2008
"Loot the Orphan Works Bill"
This is an email conversation (posted with permission) I had with a good friend, a fellow Artist and someone I consider a mentor - Mike Segal, regarding the Orphan Works Bill, and his response I felt needed to be shared...
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The Orphan Works Bill is blatantly unconstitutional. Here is the fifth amendment to the US Constitution:
_____________________________________________________________________________________
U.S. Constitution: Fifth Amendment
Fifth Amendment - Rights of Persons
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
_____________________________________________________________________________________
What this amendment is saying is that no one, including the government can take your property without just compensation. Congress may pass all the laws it wishes, however, if the law is unconstitutional, as in my view, this law obviously is, then the law does not stand. An artist's art work is their property, that has been well established in common law for hundreds of years. Even if there were no copyright laws at all, common law would protect the artist's property rights.
If someone uses your art work they must compensate you, it does not matter what congress says. If congress passes a law that is unconstitutional, it gives the courts the opportunity to fine tune how that law will be enforced, or it may throw it out all together. Meanwhile, any institution or individual who pirates an artist's work thinking that they are protected by this new Orphan Works Bill, will be unpleasantly surprised when after the courts knock the law down, they will have to compensate the artist.
Let’s look at some of the stupid crap in this bill that would not hold up in court due to the vagueness and unworkability. These would be knocked down without even needing a constitutional argument, my comments are in red.
In particular the draft bill:
• Makes it legal for anyone desiring to use a copyrighted work for any purpose to go ahead and use it without a license if they have made "good faith, reasonably diligent search" to locate the copyright owner.
A fifth grader could make an effective argument showing that the so called “good faith, reasonably diligent search” was actually half ass with no intention at finding the copyright owner in order to steal the work.
A really good lawyer would have a field day, easily proving that the thief did very little to find the person. The court would say that this language is not sufficient to make certain a reasonable search was made, and they would knock down the law for that reason.
• Use of such an "orphaned work" is free, unless the copyright owner comes forward. But even in that case the copyright owner can only claim (or sue to claim) the normal license fee, but not any additional damages or attorney's fees--even if the work had a registered copyright.
Once again we see sloppy logic leaving out the main operative concern, that is, the thief must also give up any money they gained from the use of the work due to the fact that the work was the property of the artist.
Otherwise it would be an invitation to steal whatever copyrighted work one wanted, use it to make a ton of money and then when you get caught, pay the artist a small user fee. This provision would make the entire copyright law useless, and therefore, the court would knock it down. The stupid thief who pirated the copyrighted work would have to pay damages because the law will be knocked down and not available as a defense.
• And even if the copyright owner discovers the violation, if the user is not making commercial use of the image, then there is no recourse and no compensation.
Commercial use when? Never? And what is the definition of commercial use? If they used a copyrighted image on their letterhead, or splash page, or on a business card or any of a thousand other uses, it could easily be proven that it was a commercial use even though they did not receive immediate compensation as the image was used for promotional purposes to further their ability to earn money.
The fact that they placed the image in free circulation and that it may have been copied and used by others due to this action would give the copyrighted artist grounds to sue for damages.
I am sure Disney would have every lawyer on their payroll after someone who used an old Disney image and then the pirate claimed they could not find who made it and they just sent it out as an email logo to friends. Micky does not have a sense of humor when he gets screwed.
So do not worry, this is election year pandering. Let the stupid congress pass all the idiot laws they wish, this law will be knocked down by the courts for many reasons besides, and as well as, the fifth amendment which is bigger than they are.
----------------------------------------------------
The Orphan Works Bill is blatantly unconstitutional. Here is the fifth amendment to the US Constitution:
_____________________________________________________________________________________
U.S. Constitution: Fifth Amendment
Fifth Amendment - Rights of Persons
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
_____________________________________________________________________________________
What this amendment is saying is that no one, including the government can take your property without just compensation. Congress may pass all the laws it wishes, however, if the law is unconstitutional, as in my view, this law obviously is, then the law does not stand. An artist's art work is their property, that has been well established in common law for hundreds of years. Even if there were no copyright laws at all, common law would protect the artist's property rights.
If someone uses your art work they must compensate you, it does not matter what congress says. If congress passes a law that is unconstitutional, it gives the courts the opportunity to fine tune how that law will be enforced, or it may throw it out all together. Meanwhile, any institution or individual who pirates an artist's work thinking that they are protected by this new Orphan Works Bill, will be unpleasantly surprised when after the courts knock the law down, they will have to compensate the artist.
Let’s look at some of the stupid crap in this bill that would not hold up in court due to the vagueness and unworkability. These would be knocked down without even needing a constitutional argument, my comments are in red.
In particular the draft bill:
• Makes it legal for anyone desiring to use a copyrighted work for any purpose to go ahead and use it without a license if they have made "good faith, reasonably diligent search" to locate the copyright owner.
A fifth grader could make an effective argument showing that the so called “good faith, reasonably diligent search” was actually half ass with no intention at finding the copyright owner in order to steal the work.
A really good lawyer would have a field day, easily proving that the thief did very little to find the person. The court would say that this language is not sufficient to make certain a reasonable search was made, and they would knock down the law for that reason.
• Use of such an "orphaned work" is free, unless the copyright owner comes forward. But even in that case the copyright owner can only claim (or sue to claim) the normal license fee, but not any additional damages or attorney's fees--even if the work had a registered copyright.
Once again we see sloppy logic leaving out the main operative concern, that is, the thief must also give up any money they gained from the use of the work due to the fact that the work was the property of the artist.
Otherwise it would be an invitation to steal whatever copyrighted work one wanted, use it to make a ton of money and then when you get caught, pay the artist a small user fee. This provision would make the entire copyright law useless, and therefore, the court would knock it down. The stupid thief who pirated the copyrighted work would have to pay damages because the law will be knocked down and not available as a defense.
• And even if the copyright owner discovers the violation, if the user is not making commercial use of the image, then there is no recourse and no compensation.
Commercial use when? Never? And what is the definition of commercial use? If they used a copyrighted image on their letterhead, or splash page, or on a business card or any of a thousand other uses, it could easily be proven that it was a commercial use even though they did not receive immediate compensation as the image was used for promotional purposes to further their ability to earn money.
The fact that they placed the image in free circulation and that it may have been copied and used by others due to this action would give the copyrighted artist grounds to sue for damages.
I am sure Disney would have every lawyer on their payroll after someone who used an old Disney image and then the pirate claimed they could not find who made it and they just sent it out as an email logo to friends. Micky does not have a sense of humor when he gets screwed.
So do not worry, this is election year pandering. Let the stupid congress pass all the idiot laws they wish, this law will be knocked down by the courts for many reasons besides, and as well as, the fifth amendment which is bigger than they are.
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