Creative Common Sense

You have, in front of your eyes right now, Intellectual Property. Some anonymous page designer put together the CSS to generate the layout of this blog. Google, doing business as Blogspot (or Blogger, take your pick) offers it and others — for free — for people like me to muck it up with words and pictures. That makes this webpage, in a way, a derivative work.

Most of the words in this blog are authored by me. They are my Intellectual Property — though, to be honest, the degree of intellect they exhibit is not mine to determine, but my readers’. The words in this blog which are not mine are quoted from others’ Intellectual Property, and attributed in what has become the default method for non-scholarly Web publication: a hyperlink to the original page published by that author (or that author’s employers). The portions of my words which are based on their words — my interpretations, comments, extrapolations, etc. — are also derivative works.

I am permitted to quote others by a basic principle of what you might call “common law”, and by a specific license granted by those other authors. The first instance is known as Fair Use; the second is the Creative Commons Attribution-Noncommercial-ShareAlike license which also governs this blog, as you can see by scrolling to the bottom. I am enabled to do this easily by a simple feature of the technology through which their words, and mine, are published: copy/paste.

In short, I am a Content Creator. I join the millions of other Content Creators alive and writing now, and the tens of millions who came before, and the uncounted numbers who will come after. Like most of them, I will never receive a penny in compensation for the hours I spend in this effort. Like most of them, I won’t care. The work is done for its own sake, for the pride of accomplishment, for the satisfaction of having said something I felt was important at the time in a manner comprehensible (if not also pleasing) to my readers — if I have any readers; yet that, too, is less important than having said what I wanted to say — and yes, partially in hope that someone will say, even if only to themselves, “Y’know, that Lalo guy is pretty good at this…”

“Like most of them…” Yes, in every age there are those who have managed to receive compensation for their creative effort, and there are those others who, seeing this, think “Hey, I can do that too!” Adam Smith’s Invisible Hand of market forces determines who succeeds and who doesn’t — which is another way of saying that talent is no guarantee either way (for contemporary example: the Left Behind series). And yes, in every age you will find a tiny but stridently vocal minority of content creators whose expectation — or delusion — of success has not been met to their satisfaction and who blame their failure on any and every thing except their own bad choices.

I am also a photographer — that is: using another simple tool of the technology which brings the content of virtual worlds to my computer screen, I capture images of the work of other Content Creators. Why? For the same collection of reasons that people have expressed about taking snapshots since Kodak invented the Brownie: because the work is aesthetically pleasing; because the work is historically significant; because I want in future times to see it again and recall that I was there… et cetera. And, in the case of virtuality (though this might also be said of the organic world), by “work” and “creative content” I also mean the effort of individuals to make their avatars unique among the tens of thousands concurrently logged in.

Note, in passing, that those avatars by and large create their unique appearance through the use of others’ creations — more “derivative works”, as it were.

I “publish” a great deal of the images I capture — that is, I post them online. A few find their way to the pages of this blog; most, by far, wind up in my collections at Picasa (another Google product, incidentally). Why? Partially, again, because I hope someone will say, even if only to themselves, “Y’know, that Lalo guy is pretty good at this…”, but mostly because I’m saying “Look! Isn’t this cool?”

Now, we come to Second Life, and their new policy on snapshots and machinima, which in retrospect I believe they should have called the Image Capture Policy. I thought I was done addressing it in my last entry… silly me. I thought that a simple common-sense reading would confirm that what has always been understood as the liberty to capture screen images in and of the world, and publish them elsewhere, had now been codified. Well, I was wrong. After writing that entry, I went out into the meta-cyberspace about Second Life to see what others were saying… and I made the mistake of attempting to talk common sense to some people who, I honestly believed, were simply misreading the new policy.

Take a couple of minutes to read this exchange of comments between Cube Inada and I in New World Notes. I hope I sound to you like the voice of Common Sense, but what concerns me is Mr. Inada sounding (to me) like the voice of Fear, and my suspicion that he may not be alone in his opinion. When I boil down his comments, what remains, once again, is “it’s all about the money.”

He uses the phrases (bereft of their capital letters) “devalued”, “images have commercial value”, “revalue or resell without the Copryright owners permission and or renumeration.” [sic] Obviously, he’s not talking about the intrinsic or aesthetic value of a creation, which is a personal judgment of each mind that beholds it. Neither is he talking about the extrinsic value of a creation, such as its usefulness to the purpose for which it was made. It’s clear that his consideration here is its monetary value, which at first analysis is an arbitrary sale price a creator might put on an item, but finally is an expectation of future income, which resides solely in the mind of the content creator. As best as I can tell (and I sincerely hope he will tell me if I am incorrect), he is saying two things: [1] The mere fact that someone’s created content appears in a captured screen image will negatively influence — “devalue” — the sale of said content… presuming said content is for sale in the first place; [2] The primary purpose of image capture — snapshots and machinima — is for the photographer or videographer to sell the results, and that therefore the original creator of the items in the image should be compensated for what is, essentially, an accident of placement in the image.

In the first case, I offer a counter-example: my blog entry about soror Nishi’s sculpture exhibit, and the further images I captured on the day of its opening and published in my online collections (with emphasis that they were not merely the background of those images, but the subject). Many of Ms. Nishi’s items are for sale, and thus have a monetary value in addition to their striking aesthetic value. The images I captured cannot be used to duplicate the textures she applied to her work in order for anyone else to counterfeit them, so there is no question of “lost sales” due to cheap knock-offs. How, I ask you in my common-sense way, have they been devalued? On the contrary, I may well have increased Ms. Nishi’s subsequent sales by helping to publicize, in whatever small way, both their beauty and their availability. (I happen to have also been thanked privately by her for my presentation, and I gave her copies for her own use, one or two of which she then published in her own blog.)

In the second case, my common-sense counterexample is posed by these questions: Do you have to pay to read blogs? Do you have to pay to look at images collected at websites like Picasa, Flickr or Koinup? Do you have to pay to watch machinima posted on YouTube? Quite simply: there is no commercial market of the kind Mr. Inada fears he is being cut out of. I will grant exceptions, of course: Life 2.0, which I must assume is intended for commercial release once it finishes the festival circuit.

However, consider this: Up until now, I could not understand why the new “permission denied” clauses of the policy were written one way for snapshots and the opposite way for machinima. Without re-quoting the policy, the difference is: to deny permission for snapshots (or to force the photographer to ask first), you must say so in the Land Covenant; to deny permission for machinima, you need not say anything at all, and the videographer must ask first. Looked at another way: regarding images for which there is no potential commercial market, permission is the default condition; regarding images for which there someday might be a potential commercial market, permission must be sought.

Makes sense to me.

One more thing: Mr. Inada is concerned that permission can only be granted or denied by the owner of the land the content sits on (or floats above, or whatever), and not by the original creator… and once again, his concern seems to be about losing a potential revenue source. Gods forbid, one of his buildings (which are pretty damn cool, after all) should appear in the background of a machinima scene, or one of my photos, without proper compensation!

Mr. Inada, and any who agree with him, would place restrictions on image capture in Second Life (and other virtual worlds?) far in excess of those which exist in the real world. To create a capacity they do not have now to squeeze the last possible perceived dime from their Intellectual Property copyright, they would gladly stifle two other entire — and equally valid — branches of virtual art under a ridiculous tangle of red tape in the form of cascading permissions. They may call it “protection”; in my dictionary, it shows up as greed.

Tell you what, Cube: If I discover you’re the creator of anything that finds its way into a snapshot I take after 30 April 2010 (when the policy we all already agreed to goes into effect), I’ll send you L$ 25. That’s about a dime in US currency, and is one more dime than I’ll ever see from my work.

~

Oh, and the extra notice (and possible sales) you get as a result of my linking to your profile and website? That’s on the house.

~

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10 responses to “Creative Common Sense

  1. Yes…I see both views. One of those views sounds like common sense. {Hmm…don't I remember some Frenchman from a couple hundred years ago saying something like, *common sense is an uncommon virtue* (voltaire?).

    Like you Lalo, I write, comment, and come to Secondlife in an attempt to contribute in some small way to the accumulation of information and, yes, joy in life.

    For what it's worth, I am going to change my land covenent to reflect that any outside space may be image captured in any fashion.
    I should be so fortunate as to have someone think the hundreds of hours I have spent on my estate are worth being saved for the future enjoyment of anyone.

  2. As I understand it, Lalo, you're also engaged in a project to record the history of the environments found in SL and elsewhere in the virtual world. This is clearly a scholarly pursuit, including the virtual equivalent of title search, as well as the chronology of development, commentary, and possibly critical analysis. Under the legal copyright interpretation known as “Fair Use”, a certain portion of original work accessible to the public can be used without permission for academic and scholarly purposes.

    In the real world, even the stars must allow the public areas of their homes to be photographed. They, in fact, encourage it by locating their homes in concentrated areas which are on tour routes, for the publicity. Publicity pays more bills than talent does.

    Come to think of it, why not charge people who insist on requiring permission for the publicity you provide? Who would know about their valuable property if no one talked about or displayed it? Sauce for the goose…

  3. 25.usd?

    WHO ARE you to decide the value of MY work WITHOUT my consent and then agreement.

    you have no concept of the OTHER. you SAY you want the OTHER to value your work.. BUT YOU REFUSE to let them VALUE Theirs….

    YOULL DECIDE that FOR THEM.? NOTHING FAIR ABOUT YOUR IDEA OR TERMS OF USAGE.. or LL new screenshot/machinina policy for that much.

    Like a slave master deciding the value of his slaves “FREE” work?

    think again. write up another post. this one is full of crap, as another might say;)

    oh, and try not paying your LL bill.. im sure they will still allow you to express yourself on their nickel for your freedom to enlighted others by presenting them your works… geez.

    AND NOTHING Including you ability to write this naive dribble is really FREE.:)

    The cost of your naive ideas will be taken out on others… and thats the real greed of your concepts.

  4. @Larry, a.k.a. Cube: You have yet to explain how the appearance of your work — or anyone else's — in a screenshot or machinima, with or without consent, diminishes its value in any way. Until you do, you're just screaming, not making a point.

  5. Im a commercial designer who pay's others and is paid for their work. I have professionally done this and contributed to virtual worlds as an industry and buisness for 20 years.

    I take part in Commecial trade and law that adults agree to abide by in the real world.

    You dont see it because you obviously dont offer image based work of value to others. many do, and have for millenia. And in each culture before the one you seem to “believe” we now have..where you are due otehrs works on your terms ..FREE if they dont know youve taken it

    HUMANS WORKS AND TIME require to be compensated by equal value of goods and services in order for them to thrive and a community to grow FAIRLY.

    except in a society were SLAVES are expected , which i see is the model of society your encouraging others to return to.

    Where only YOU as slavemaster, determine the value of my efforts, or the amount of rice, as your slave, that i get to eat.

    EACH HUMAN IS TO VALUE THEIR OWN WORTH.

    My point is clear.

  6. BTW-
    You have “published”- posted YOUR single click “screencap photography” from OTHERS WORK EFFORTS (IP) within SL -from BEFORE THE NEW TOS–…as CC – COMMERCIAL AND DERIVATIVE rights NOT GIVEN to others on your “photography” streams.

    Hypocrite. yes?

    Cube3

  7. @ Larry…you are nuts.

    If a film star, or an avatar in SL, is photographed, they are possibly wearing clothes and accessories created by 12 different designers. In neither world do these designers get asked for permission, nor compensated.

    If I create a tree in SL and don't want it photographed for fear of copying, stealing etc…..then best to leave it in my inventory. I hope Larry and others like him don't let anyone see their work, it's safer.

  8. There is no way you can tell me that just because you designed and built a 'building' that people cant take photos of it, in front of it…etc. Hell if you tried to make that a law in the real world you would be laughed at so loud and long that the emergency rooms would be full of hernia's. Get over yourself Larry! Does your business cost people virtual cash, yes, when you design and build it for them, but after you give it to them and set it out, despite what you want, it is now on public view. Unless you put everything you make in a private sim, which wont make you any change.

  9. @larry rosenthal…
    Please, You have to be kidding.
    And on the off chance that your comments weren't posted tongue in cheek, I must say that I'm astonished at your perceptions.

    Up until this rant, my impression of your writing was that you were an intelligent rational person. I haven't always agreed with the points of view you've taken but that certainly didn't make them wrong.

    Gaidion's comment seems to apply here totally.

    {And I had to stop for a few minutes after reading Lalo's comment about the fence to let the tears of laughter subside.}

    BTW Larry…all the capitalization and double spaced lines makes a less than coherent arguement less believable.

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