Websites and magazines frequently infringe upon photographers rights and too often they get away with it. For most pro and semi-pro photographers and illustrators finding all of the unlicensed reproductions of your images in print and online is a daunting task – not to mention an unpleasant one. Modern web based search tools are making it much easier to search the millions of images online and in print in an instant, enabling you to catch infringers red handed.

ONLINE: TinEye.com is a reverse image search. In other words, it does for images what Google does for text. Now photographers, illustrators, and fine artists of all kinds can search through over a billion images in an instant. Below is a video explaining more.

IN PRINT: Other valuable search tools for photography agencies is PixID. This automated image monitoring service uses advanced image identification algorithms to identify where your images are being used in print publications. Using such a service enables photography agencies to discover unauthorized reproductions of their images.

WHAT NOW?
If you find an unlicensed reproduction of your work take a screen capture and save it in a safe place – this could prove to be critical evidence should you decide to enforce your rights. Contact an attorney with experience in intellectual property right away to discuss your options. I can be reached at ian@ianhgibson.com and may be able to help.

Rutgers master’s degree candidates, Tom Engelhardt and Shaun Ellis, tapped into Billboard’s record sales database of over 4,200 popular songs and examined compositional data points of these hits (including: tempo, key, loudness, and danceability, among others) in search of correlations between this compositional elements and record sales performance. The scholars’ purpose: to derive the formula of a hit song. In fact, the results appear to mirror the sounds of many popular radio stations here in the Los Angeles area. For example, their findings indicate hits songs are usually in a major key, have grown longer and longer in duration over the last few decades, and appear to gravitate toward an “optimal figure of 119.80 BPM.” Click here to read the entire work, “Visualizing A Hit.”

If the formula to write a hit song is no longer merely conjecture but rather a verifiable science based on empirical data, this will dramatically effect the future of popular music. For one, valuable conclusions about the purchasing habits of the marketplace can be made. Such conclusions could have major implications on the way future songwriters will compose or which songs record labels are willing to release. It seems only logical that over time major labels would force the degree of variation between “Pop Song A” and “Pop Song B” to grow ever smaller in search of a sweet spot that appeals to the maximum number of listeners (irrespective of the song’s artistic merits, of course). Such a result would effectively be the homogenization of an art form – a process many would argue has been in effect for decades already.

Worse still, if labels placed their trust and financial futures in the effectiveness of the formula by restricting their releases to only those with the greatest probabilities of profitability as per the formula, then the formula would become the self-perpetuating definition of a “hit,” rather than mere observation

I don’t take issue with labels looking to make a profit. After all, they’re in the record BUSINESS and if they weren’t in tune with the purchasing habits of their customers they wouldn’t be in the business long. In all likelihood, mega labels already engage in some form of focus group style information gathering and have for some time now.

I do, however, have a fundamental problem with art being cannibalized at the point of creation for want of popularity over substance. To illustrate, consider the issue from the perspective of the artist. Imagine if someone designed an application that could analyze your band’s latest mp3 and spit out a list of suggested compositional changes that would make your song decidedly more commercial viable. Would you make those changes? If you knew a wildly popular group like U2 or Jay-Z had been secretly using this app for years would you think less of them? Please let me know by leaving a comment below. 

[Photo under Creative Commons license by Joao Trindade http://www.flickr.com/photos/joao_trindade/4363149160/]

One of the cases I am currently working on has been getting some great press recently. I thought I would provide you with a few links:

1) http://cocoperez.com/2011-01-05-horrorpops-patricia-day-sues-mattel-and-hard-rock-cafe-over-rockabilly-barbie

Perez included a nice little shout to our law firm, One LLP.

2) http://www.examiner.com/rockabilly-psychobilly-in-los-angeles/patricia-day-of-horropops-files-suit-against-mattel-inc-over-rockabilly-barbie

Great coverage penned by a doctoral candidate in ethnomusicology specializing in psychobilly and nostalgia in popular music.

3) http://barbiefest.com/news/danish-rockband-horrorpops-suing-barbie

4) http://www.courthousenews.com/2010/12/28/32910.htm

DIY Musician’s recent article on “6 Simple Ways to Give Back to Your Fans” includes excellent creative ideas on how to feed and care for your most valuable asset – your fans.

I have always been a big proponent of the pay it back mantra when it comes to fans. The ideas proffered in this article take that paradigm to the next level with individualized, one-on-one contact that is sure to delight fans and perhaps transition them from a casual concert goers to diehard, never-miss-a-show super fans.

Saying “thank you” to those that support you has never been more important [or easier] than in this hyper-transparent, internet culture we are all navigating. Speaking of which, thank you for reading this post. It truly means the world to me.

Photo under Creative Commons’ license by Libertinus (http://www.flickr.com/photos/libertinus/3474692586/)

Ultimately, though, I am pleased to see that the art at issue is causing a conversation – albeit a scathing one-sided bashing.  To me, creating a thought provoking debate is as great of a success as any artist could hope for.  That being said, I would much rather see an article covering the 10 Most Underrated Artists in Los Angeles.

Peoples correctly points out that the use of SoundScan data as a conclusive indicator of the decline in newly released musical works is flawed, however his reasoning is incomplete.  He failed to recognize that SoundScan is becoming an antiquated system that a significant number of independent artists have opted to forgo – despite the fact that registration with the SoundScan system is free.  With the panoply of online retailers such as iTunes, Amazon, MySpace Music, etc., or wholly-independent shops maintained on an artist’s website, SoundScan, which is primarily associated with the brick-and-mortar flavor of retail, is becoming obsolete.  Therefore, the number of shipments of SoundScan registered records used as a basis for the RIAA’s position is far from accurate in today’s marketplace because it does not report the innumerable releases of the independent artist community.

More importantly, the elephant in the room here which was not mentioned is the fact that it is the RIAA whose entire existence is dependent upon records sales, not modern musicians.  It is because of this that I find the RIAA’s use of flawed statistics to point its finger at musicians as being motivated by money to be particularly offensive.

As a former professional musician, I will be the first to admit that, yes, money is one motivating factor in what drives an artist – but only to the level that one’s needs are met.  Beyond that, purity of the art often trumps additional income as a motivator.  For the RIAA to assert that musicians are creating less – already a flawed assumption – and that this decline in productivity is because we do it for the money is repugnant and self-serving.

The subtext of the RIAA’s argument is that consumers must pay for music or musicians will stop creating it.  Anyone familiar with my blog already knows that I passionately believe every artist should be paid for their creative contributions, but the RIAA is not arguing on behalf of the creative community here, it is fighting for its only parasitic survival.  Without record sales the RIAA cannot survive.

Musicians will never lose the incentive to create.  We are motivated by an internal compulsion that only the creative community can understand.  It is the reason an author may wake from a deep sleep and run to her notebook to jot down some inspired concept for a new text or a dancer will practice to the point of total exhaustion.  They do this because the art compels them to, not for money.  In fact, if you are motivated by money I couldn’t think of a less worthwhile profession to enter than the arts.

A clear line should be drawn between the business of selling records, upon which the RIAA relies, and the  motivation of a creator.  Artists create because they are compelled to do so.  Whether consumer support their bounteous efforts dictates only if an artist can sustain an existence by their art, not whether or not they should continue to create.

A captivating animation of Dan Pink’s discussion of motivation in which he explains why money alone is not a sufficient motivator for more cerebral. as opposed to manual, tasks.  While Pink fails to include artists in his discussion – relying instead upon highly skilled/educated programmers and the like - I believe artists clearly fall into this category.  This explains why so many creatives remain true to their art even in the face of financial ruin.  Therefore, money alone is insufficient to drive an artist for any extended period of time; a greater purpose of some sort must exist to truly motivate a creative.

What’s your motivator?

I cannot wait to see this film!  It is an exciting time in the (r)evolution of intellectual property – particularly with respect to the interest garnered by organizations like the Creative Commons and their omnipresent campaigns for change.  What are your thoughts?  Should remixes be presumptively permitted as fair use?  How much change would the secondary artist need to incorporate for their art to rise to the level of a sufficiently transformative and, therefore, permitted remix?

An expertly crafted mashup/remix of Jay-Z and Radiohead by Max Tannone.  Full album available as a free download @ www.jaydiohead.com.

Should this be legal without the permission of the original artists?

So central is the idea of the freedom of speech, that the Bill of Rights places it first and foremost as the primary tenet of a democratic republic.  Specifically, “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Further, this potent protection providing freedom of speech presumptively applies to all forms of artistic expression: words, images, sounds, movements and more.  In an era where anyone with an Internet connection and a thought can be a writer/publisher, the importance of such a right has perhaps never felt more real to “We the people.”

In addition to this freedom, the U.S. Constitution provides a means of incentivising our creative authorship by protecting it for a limited time from misappropriation.  Specifically, Article 1, Section 8, Clause 8 of the U.S. Constitution, affectionately known as the Copyright Clause, reads: “Congress shall have Power to…[secure] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…[.]”  By granting authors the right to prevent infringers from profiting off of unauthorized copies of their works, Congress provided a means by which creators of copyrightable content could make a living through the ability to monopolize their content for a set period of time.

Therein lies the contradiction.  The First Amendment and the Copyright Clause necessarily limit each other despite the founders’ express Constitutional directive that no law abridging the freedom of the speech shall be made.

How, then, does the First Amendment comport with the strict and menacing limitations on expressions created by Copyright? From this vantage point, copyright law appears to act as a mutant form of censorship.  For example, if a creative content producer sought to incorporate a popular literary and film character, like Harry Potter, into his own book or a drop a short musical sample from George Clinton’s catalog into a remix, copyright law has caused our purportedly boundless freedom to express ourselves to come to an abrupt end.[i]

Many legal scholars find this reality repugnant to the plain language of our Constitution and the purpose of the copyright clause.  They posit creative expressions built upon previously published copyrighted content should be lawful.[ii] An example of one such mash-up work debacle is Danger Mouse’s 2004 release entitled The Grey Album.  This record was an ingenious remix of The Beatles’ self-titled album (a.k.a. The White Album) and Jay-Z’s The Black Album.[iii] Sadly, this work was quickly quashed by cease-and-desist letters sent by EMI, copyright owners of the sound recording of The White Album, and has yet to (legally) resurface.  Given the broad and seemingly unambiguous language of the First Amendment, Danger Mouse’s The Grey Album should have fallen squarely in the realm of protected speech.  But any argument of free speech under these circumstances cannot survive a claim of copyright infringement.

To be fair, copyright is not necessarily a cold-blooded villain.  After all, it was designed to incentivize and protect the creative content producers.  Furthermore, within the Copyright Act’s voluminous scripture lives a nebulous exception to infringement designed, at least in part, to allow for certain otherwise infringing works to be lawful.  Granted, the doctrine of Fair Use has afforded a certain amount of leeway for limited exceptions like highly transformative parodies or nonprofit educational uses, but this remains a small concession in light of our purported adoration and need for the First Amendment’s expansive freedoms.

Copyright is only but one area of the law that limits our ability to freely express ourselves. For example, obscenity law, trademark law, and the right of publicity loom in over our speech as well.

Judge Alex Kozinski’s dissent in the famous right of publicity case, White v. Samsung Electronics, Inc., stated:

“Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.”[iv]

Should the copyright law be more understanding of our accretion-based culture?  Is the fair use doctrine insufficient in light of the floodgates of content creation spurred by the Internet?  Do artists need the economic incentives provided by copyright protection to promulgate their craft?

[Photo by Mr. Enjoy @Flickr]

[ii] See generally, http://remix.lessig.org.

[iii] See http://www.youtube.com/watch?v=O3VVykEt37c to listen to a track from The Grey Album entitled “What More Can I Say?”.

[iv] 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc).