Publishing in general, and for the visual arts in particular, has moved to what’s called a “permission culture,” which basically means that nobody will publish your work unless you get explicit permission from the rights owner. This is often an arduous process, since art often includes many copyrighted images or other materials. A documentary film producer, for example, has to worry if an interview subject has the TV on in the background. Permissions culture means that the producer has to either remove whatever is on the TV, or secure permission to use it. It also means that scholars may not be able to publish articles that include images of the work they are discussing, either because the images are unavailable, or unaffordable.
On the surface of things, this seems odd: shouldn’t a lot of this fall under “fair use?’ The copyright statute, after all, cites education as an example. An important paper in 2007 explained why fair use doesn’t matter in this context. Basically, fair use is an affirmative defense against an infringement claim: you sue me for infringement, I claim fair use, and that’s the argument that litigation resolves. Fair use guidelines are deliberately vague and left to a case-by-case judicial determination, and so it’s not always obvious what gets counted as fair use. Litigation is very, very expensive, and publishers are risk averse. They don’t want to pay for litigation, and if they lose, they lose not only all that money, but the work they were trying to publish gets enjoined. So publishers won’t publish without prior permission (fair use thus systematically favors rich claimants and defendants). In addition to the problems all of this directly creates, it indirectly creates a ratcheting effect, because one place courts look to see if use is fair, is industry practices. So the more publishers seek permission for everything, the narrower fair use becomes.
Yes, but: how much damage does this really do? As a matter of theory, it seems to me to be a good example of an anticommons, where too many exclusive rights prevent a resource from being utilized or developed. There’s now some field research by Patricia Aufderheide, Tijana Milosevic and Bryan Bello, and it’s sobering. Across the U.S. visual arts community, a range of interviewees report abandoning work, changing it midstream, and otherwise doing less or differently than they would have, solely because of permissions culture. For example, consider scholarship:
“Topics are chosen, avoided, or changed to accommodate permissions. Professors steer graduate students toward earlier centuries where public domain work is available …. Monographs and case studies are chosen over historical overviews and comparisons. Exhibition catalogs exclude relevant images. Art journals publish articles with blank spaces where reproductions should be. Articles are not published and catalog copy altered because the artist or artist’s estate does not agree with the scholar’s perspective and so will not authorize reproductions …. Rights holders impose aesthetic restrictions that reflect an artist’s importance within the argument, for example, reproductions at a certain size or exclusive to a page” (10)
The paper quotes one scholar: “For those of us who work against the grain of market-driven arts economy, their one recourse for controlling us is copyright” (10). And scholarship is only one of the categories the paper looks at.
On the other side of the equation, Jessica Silbey has documented extensively that intellectual property doesn’t incentivize creative work nearly to the extent that people claim. For example, “corporate agents agree that IP facilitates some development and distribution of creative or innovative work but rarely the initiation of that work …. In other words, even for the companies that may exist to make money … the progress of science and art requires passion for the work, which does not appear to be incentivized by IP’s investment function. Thus, it may be more accurate to say that IP functions subsequently as a form of postindustrial corporate capital” (12-13, her emphasis).
In combination, this research suggests that the system is misaligned. The economically-sanctioned response to such a state of affairs is to centralize the permissions process. But as Aufderheide, Milosevic and Bello note, the visual arts community has already done that, and there are two institutional middlemen for efficiently obtaining permissions. The problem here is situations where artists think they ought to be able to use the work without permission. You don’t have to be a socialist to come up with one way of solving the problem: as one of the most important papers in neoclassical economics argues, strong property rights are only one form of legal entitlement. Another is liability rules: unlike property entitlements, liability rules do not give the entitlement holder the right to stop a use. They do, however, ensure that the entitlement holder gets paid. What kind of entitlement you want to have depends on what’s most efficient, of course, but the standard reason property rules fail is excessive transaction costs: it’s too hard or expensive to negotiate your way to the desired result. This might help, but it could very well leave the cost problem unsolved. And, in any case, there isn’t such a regime for the visual arts.
In other words, the legal system presupposes that fair use doctrine is available: this is a substantial part of the argument for why copyright doesn’t create First Amendment problems. But the situation on the ground suggests that fair use, for predictable reasons, doesn’t work as promised. This seems to me to be an increasing feature of intellectual property law: the law on the books looks ok, but not so much in practice. I’ve complained about digital rights management in this vein before, but it’s not the only example. Another is the notice-and-takedown provisions of the “safe harbor” provision of the Copyright Act. For ISP’s to escape copyright liability, they have to remove content whenever they receive a takedown notice issued “in good faith” from a content owner. This is great for sites like YouTube, but it leaves people with legitimate reasons why the material should be online with little recourse: ISP’s have no incentive to investigate takedown claims, and the appeal procedure (which involves the ISP, not a court, anyway) is not very robust. The Copyright Act is a mess of a law, and, as Wendy Seltzer argues, “even good faith uses of the DMCA are problematic when the underlying law is uncertain” (8). It’s very easy to issue a takedown notice (and there is almost zero risk of cost), and can lead “copyright claimants to exaggerate their reasoning.” As a result, “the DMCA is systemically susceptible to abusive claims. When the benefits of unlawful activity beat the risk-weighted penalties for being caught, parties can get away with lots of outside-the-law activity” (9).
Again, what’s the problem? So what if you have to appeal to get the video of your kid dancing to Prince back online? Seltzer notes the implications for politics: in 2008, the McCain campaign had some YouTube ads deleted with a week to go before the election, and so the 10-14 day for appeal window was no help; YouTube never looked at the validity of the copyright complaint, which trumped what she argues is fairly clear First Amendment protection (this happened to both parties, btw). So too, scientology has mastered the use of the takedown notice as part of its campaign to stop people from criticizing the Church, and Wal Mart even claimed that its prices were copyrighted (p. 44)!
Seeking permissions is standard procedure, even though “this fear of risk is in stark contrast with actual legal trouble experienced:” Aufderheide et al. noted that only one of over 2800 survey respondents reported a legal challenge, and that was quickly settled. “Challenges [to use of third party works] mentioned included their own self-doubt, queries by colleagues, and established customs of the permissions culture. Thus, for some respondents, ‘challenge’ often meant either self-censorship or the frustrations, delays, and distortions resulting from something other than a challenge from a rights holder.” For those who were challenged by “estates or other rights holders” almost never fought back, even to YouTube takedowns (8). Thus:
“Endemic concern about legal risk is thus radically out of step with any experience of direct challenge, most of which appears to have been sent by bots or rights holders with a default position of demanding permissions in all cases. The lived experience of legal action or anything close to it appears to be vanishingly small. By contrast, the belief that copyright is fraught with threatening situations appears pervasive. The fear that rights holders will complain, however, appears more common and highly effective in the absence of any language to defend one’s choice not to license. Most common is internal censorship and gatekeeping within the production process” (9)
In sum, score (another) one for complete subsumption. Or, in Foucauldian terms, we see again the displacement of juridical law as an intended limit to a disciplinary, biopolitical regime.