For artists who use existing works–especially photos, video clips and music–as raw material for their own creations, the “Know Your Digital Rights” seminar at last week’s Vimeo Festival + Awards was something of a call to arms.

“I don’t think you have any digital rights, yet,” declared Harvard law professor Lawrence Lessig, co-founder of the Creative Commons and a vocal advocate for copyright reform. “This community has to accept the reality of the way law treats you. The law believes that most of the creativity being celebrated this weekend [at the Vimeo Festival] is presumptively illegal.”

He called on artists to force a change in copyright law by “teaching the culture and the law that this kind of creativity”–re-purposing, transforming, and remixing the copyrighted works of others to create new works–“should be accepted and encouraged.”

He offered his prescription: “To encourage the law [to change], we need to do an enormous amount of [re-purposed art] and spread it–not just on Vimeo, but in schools, in bars, every place we can. We have to respect the people whose art we build upon. But we don’t respect them in the old fashioned way, by having our lawyer call their lawyer. Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit.

“We need to stand up and acknowledge what we’re doing, give people credit, and thank them, but not ask permission,” Lessig said.

“By demanding that, we can teach this culture how this form of expression is essential. When we’ve taught the culture, the law catches up…even Congress recognizes that it needs to relax [the law] a little bit.”

But creators who use the works of others without permission must allow the same free re-use of their own works, Lessig added.

Sharing the stage with Lessig was Paul Miller, aka DJ Spooky, a musician and re-mix artist who also believes in the principle of share and share alike. “Copyright laws are unenforceable,” Miller asserted. “The way the law is written versus the way we live are parting ways.”

In response to an audience member who asked about balancing the interests of those who want compensation for use of their copyrighted works and with those who want to repurpose content for the sake of art, Lessig insisted that he’s “a big believer in copyright. We need it, especially in the digital age. But the [current law] is completely senseless in the digital age….someday we might be able to sit down and say what a new architecture for copyright law looks like in digital age.”

Miller said people ask him, “Why would you want to give your work away for free? What’s in it for you?”

He explained to the Vimeo Festival audience that his compensation for giving away his work is  “cultural capital.” He cited examples of works that he gave away for free that went viral, and the result was that he got “more branding and buzz….In many cultures, people give away things as a way of gaining status,” he said. “I still make money. Nobody likes being broke. But he economy of free can bring back a lot more return [than you think].”

Miller also said that he makes a distinction between users of his works. He’s not concerned about individuals using his music as soundtracks for their videos or for their art projects. “I don’t sue people. But if Nike did that, I’d have my lawyers calling them. If some kid is using a track, I let it go. You build your reputation off the credibility you gain from having your work shared and used.”

Lessig said, “I never tell artists that they should give away work. If you’re interested in distinguishing between commercial markets [where users of your work pay] and community markets [where users don’t pay], the [Creative Commons] non-commercial license was designed for that. If you want to make a commercial use of your work, then you have to ask [permission] of the artists” [who’s work you have used.]

Asked whether artists should be able to make money from works they create by appropriating the work of other artists, Lessig said, “I absolutely believe that people
have a right to be compensated. And people say to that, ‘You’re letting people take works for free and make money off it.’ That’s right, but….[if there were] a cheap automatic way to figure out who owns what, there may be a way to get compesnation back to the original artists. But for that to work, you have to make copyright a more automatic system. Now there is no way to know who you need to compensate. Copyright is the most inefficient property rights system known to man. And that’s why you have the right to take it and use it.”

Currently, copyright owners can resist the dissemination of unauthorized uses of their works by invoking the Digital Millenium Copyright Act. Under that law, copyright owners can press internet service providers to take down works that allegedly violate copyrights. But Lessig expressed hope that sites such as YouTube, Vimeo and others become less quick to abide by DMCA take-down notices as they compete with each other to attract the most creative artists.

And Miller advised, “If you get a take down notice, re-name [your work] and re-post it in different formats. Get into an arms race with them. Make it tedious for them.”

Downplayed (but not unmentioned) by Lessig and Miller was the legal risk of defying the current copyright law. While they and others advise artists to push for what amounts to a broad expansion of fair use, the financial penalties for defying the existing law remain prohibitive.

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