The subject of copyright enforcement came up as I was listening to a panel of newspaper journalists discussing multi-media journalism on C-Span the other day. They were worrying about what would happen when various aggregators around the world start lifting their original news features wholesale without credit or compensation.

The discussion struck me as revealing how much more vulnerable to re-use, misuse and abuse intellectual content of any kind has become in the cyberspace world. And also how much of a commodity content has become.

In the "old days" you had to do some heavy lifting—even if it meant nothing more than picking up the book or photo or illustration and taking it to a copy machine, calibrating the machine so that you got a decent image, making sure it had paper, collecting the output and then having your way with it, whatever that would be.

Before the internet, and especially before desk top publishing, you pretty much had to work with physical copies of things, benignly borrowed (or taken) words and images on paper (or some kind of "substrate" as the term of art would be) for some immediate use. This imposed a variety of practical barriers that kept the leakage of rights to a minimum and concentrated its more substantial flow in the hands of professional thieves.

All of that has changed—and with the low cost and ubiquity of scanners, with cell phone cameras that can capture a Dali or a Rockwell, not to mention your hard-won framed shot of the Chinese Great Wall, and circulate it digitally for mash-ups and re-uses—gate-keeping the rights of images is like keeping a safe deposit box in a room with an open window.

Nonetheless, the publishing industry still relies on copyright law as the foundation of its economic viability. As all who read ForeWord well know, publishers have struggled to cope with establishing rights in an electronic world, and authors and agents have been pushing back while warily going with the flow (See Model Trade Book Contract and Guide, Including Electronic Rights Clauses, a valuable 64 page booklet published by the Authors Guild, Inc., www.authorsguild.org).

All of this leads to a book I'd like to recommend to any of you who are interested in the subject, and especially if you deal with pictures as well as intellectual property and copyright in general: Permissions, A Survival Guide. Blunt Talk about Art as Intellectual Property, by Susan M. Bielstein (0-226-04638-9. University of Chicago Press, 2006).

The author is the executive editor for art, architecture, classical studies and film at the University of Chicago Press. Let me disabuse you of any concern that as a consequence of her position, this short and engagingly written work is simply a compilation of the prescriptive by-ways of legal minutiae.

To the contrary, Bielstein has transformed the process of acquiring and dispensing rights into a challenging exercise of wit, ingenuity and perseverance—governed by both precise definitions on the one hand and improvisation on the other. She launches her work with history, overview and example before getting to process.

Early on she frames all that follows in image permissions: the distinction between copyright permission (for content not yet in the public domain—not as readily determined as one might think if the content is another's version) and use permission (getting and/or paying for a reproduction of any otherwise public domain subject, jealously guarded by the museum that owns it).

With these two variables, the search for permission can be as convoluted as the three variables of the mechanical, performance and authorship rights in the music business (not to mention transcriptions and versions).

After a brief excursion into the history and definition of copyright, and how it has struggled to keep up with media technologies of the times, Bielstein establishes that "the proprietary interests of copyright and free speech are not mutually exclusive. Both rights are granted by the constitution."

Nonetheless, she observes, the way some people conceive of copyright is as "a kind of giant First Amendment duty-free zone. And on the face of it copyright is not about free anything. In the United States, at least, copyright is about commerce and spurs to free enterprise." She supports this in a chapter that provides an overview of copyright conventions and concepts globally and historically.

We are then taken to the roots of today's dilemma in defining and seeking rights to visual works, "The day that Marcel Duchamp arranged for a porcelain urinal to be delivered to the 1917 Independents exhibition in New York City was the day that a number of closely held beliefs about art began to shift...the object didn’t even have to originate with the artist who claimed it. The thing was art if the artist said it was."

So, much of the book is concerned with the question she then raises, "Today, what are we to make of art that is virtual, not actual...or driven by social participation?" Bielstein defines the issues with numerous real life examples, and closes her work with practical advice about where to find public domain resources, free resources and how to go after images that require permission.

She provides sidebars on artist's moral rights and copyrighting architecture (and pictures of architecture), and on rights to images of ephemeral performances. She discusses the pros and cons of the sovereignty of the author and of fair use, including how and when scanning images of two-dimensional originals may fall into fair use.

The work is sprinkled throughout with illustrations of visual works and their permissions trails. For many, rights are easily acquired. But for others, not so simple. One example is a famous Brassai photo of Picasso's dog, Kazback, taken in Picasso's studio. The credit reads "(c) Estate Brassai-RMN (c) Estate of Pablo Picasso/Artists Rights Society (ARS), New York. Photo credit: Reunion des Mussées Nationaux/Art Resource, NY." In order to reproduce the photograph in the book, Bielstein had to pay copyright fees to the Brassai Estate, the Picasso Administration and a use fee to RMS for the transparency.

The practical value of this work is that it draws on the author's experience and she takes you through the details of everything from choosing the size and format of digital files that you may be ordering to how to negotiate on price with museums. There is also a useful bibliography and a short list of image banks and artist's rights organizations.
 
The real meat on the bone of this work, however, is the author's blending of anecdotal experience, procedural advice and a critical effort to point the way out of the box that electronic reproduction and increasing layers of rights control are putting the users of creative assets – adding thickets of procedural obstacles and barriers of cost that lead either to shrinking use and availability or increasing use without permission.

She discusses the benefits and limitations of "flexible copyright" (copyright in advance with conditions) in the Creative Commons. She quotes Laurence Lessig from his book Free Culture that "there is no check on silly rules" on the internet because rights are enforced by code and by rote "not by a human but by a machine". She looks with favor on the practice introduced by Amazon that makes available used (aftermarket) books alongside of new works. She suggests that a similar central catalog allowing keyword search of both public domain as well as images requiring license would benefit both users and licensors.
 
Whatever the solutions, the problem is real and Bielstein lays out the dilemma. On the one hand, she writes, "Today in the new millennium...librarians at some of the major research institutions across America are on a rumble, rolling out a version of fair use in a push to make any and all intellectual property available without charge to what could turn out to be a potentially unlimited number of users."
 
On the other, she notes, the traditional freedom of exchange of a published work that passed from hand to hand "is challenged in the new coded environment, where every use of a work can now be monitored, counted and controlled, where a downloaded copy cannot be borrowed or transferred, edited or excerpted and certainly not resold."

I have always thought of words and sounds and images as arrows shot into the air as in the poem, and " they fall we know not where". But soon they become a part of the fabric of conversation, of thought and of the common language and culture. The artist by the act of publication and sale has begun the process of making his or her original work part of the common intellectual property of humankind.
 
Bielstein sees that as a "fragile ecology," and so gives voice to the soul of what we are all about. She provides much food for thought on the way to dealing with the dilemma of intellectual property in our time. This is a book that should be in every publishing professional's library.

Posted by: Eugene Schwartz, Editor-at-Large