An open letter to N.L. Belardes.

I was pleased to stumble on your web site when my friend Scott died. Rex left me a message here to let me know while I was out on the road earlier in the summer, and when I got home I was really happy that you were instrumental in putting together the tribute show (which I hear went really well). Through your past writing, I also found out about the death of Pete Williams, another Bakersfield musician I knew. Though I might not have said so at the time, I also enjoyed your podcast using Pete’s music—some of which I had not heard before. I left Bakersfield over a decade ago, and it’s been useful to find out more about my old friends. I’m glad you cared.

I’m glad you put out the effort to try to bring people together. Death can do that—it can forge a community when there are too many complications to get across when people are alive. Bakersfield has always had some identity problems that way. People tend their own gardens and defend them against all incursions. I’m glad that you are trying to promote the place and its music in a variety of venues. I know a lot of the people you write about. It is nice to see them get some attention.

I would have preferred to talk to you by phone. Since you hung up on me when I tried to talk to you, I have no alternative. There’s no venom or ill-will, just frustration. I don’t really know much about you, other than the fact that you identify yourself as a novelist. The most salient facts about me are: I am a writing teacher who specializes in nonfiction and technical writing (for the last eight years or so) and a documentary photographer (for about thirty years). I was a friend of Scott Sturtevant, and was chosen by him to document several phases of his life. He taught me more than I can really describe. You seem to believe that I’m upset with you personally. I’m not. I’m upset with you professionally. There’s a big difference. I tend to be quite direct in my speech and writing. I regret that you took it personally.

For people who work in documentary, copyright is a major issue. When you affixed your name in large letters underneath one of my photographs, and a publication I participated in, it was upsetting. The misunderstanding (given the number of images on the web which are defaced with copyright symbols) is a common one. I use the term “defaced” not because I am against copyright. Far from it— I say that they are defaced because it is both ugly and unnecessary. It’s not just your brand— it’s any brand beyond source/creator information (which is better embedded in the surrounding page/text) that bothers me. Check, for example, the images at most historical societies. The images are usually clean, but often copyrighted.

I never asked you to pull the copies of my work from your site, nor did I demand that you give me credit for those works. I don’t really care. I consider your use of my material to be a “fair use” as defined by law—Scott is certainly newsworthy. I would have preferred to see good copies rather than the still from the video tape (I’ll be posting some of the pictures of that show at Mannequins later). What upset me was your copyright symbol on my work, reasoning that “you took the picture” (of a picture). Copyright law in this situation is amazingly simple, really.

Since 1978, the use of the © symbol is totally unnecessary. All works, the moment that they are fixed in tangible form, are protected by copyright. When you push the button on your camera all your pictures are granted copyright protection if they are original works, or if the item being copied is in the public domain. Your photograph of a video still of one of my photographs is not particularly original and my photograph certainly isn’t in the public domain. In the case of the pictures of Deriva, yes, you can claim that your “still life” is copyrighted by you. No notice is required. No name need be attached; it’s yours. You can register it for full protection under the law if you like because it is original.

Registration is important if you want to recover punitive damages for someone stealing your work. This requires the filing of a form with the Library of Congress to register the picture, and the payment of a small fee. Many professional photographers send contact sheets to register them, that way you save on the postage and fees. Without registration, most of this discussion doesn’t really matter. The &copy mark means absolutely nothing; it’s an old practice that has little significance unless the work is of a commercial nature, and only then if it’s been registered. Without registration, the significance of possessing copyright on one’s work is simply this: you can (mark or no mark) seek an injunction to stop anyone form using your work, commercially or non commercially, unless it is a “fair use.” Journalism (even of the citizen type on the web) would in most cases be considered a fair use.

In short, the circumstances that gave you the right to take a picture of my picture and put it on your blog also gives anyone else the right to do the same if it is for instructional or news purposes. That’s what annoyed me. What right have you got to say “I own this piece of news,” or this piece of history? People like me who do documentary work are concerned about attempts to control artifacts with no concern over future implications. There is a great comic book from Duke University about these issues. As a writer/photographer yourself, you should care about what copyright law protects from and allows for. It’s a two-way street. Copyright is there to protect creative artists like novelists, painters, and art photographers. But it is also there to allow people access to the raw materials to make creative products, or to write accurate histories and compose intelligent criticism.

Indiscriminate use of copyright and the copyright symbol perpetuates dangerous myths about what you can and cannot own. Putting a picture on a commercial product such as a T-shirt, book cover, CD cover, etc. is NOT a fair use, but an illegal one if the image is copyrighted, or a copy of a copyrighted work used without permission. You can have a cease and desist issued if you like, but no damages will be awarded unless the image has been registered. But think of it this way. If you are set to have a novel printed at a major publisher and you give them a picture you took that hasn’t been properly researched, they will lose all the costs of setting the image if someone claims ownership. They might not be awarded damages, but they could cost you money. This wouldn’t happen in real life, because major publishers have a legal staff on the look-out for such problems.

There is nothing personal in all this. Sorting through the issues of intellectual property, especially when creative artists are involved, is mind-numbingly complicated. As a relatively simple example, Coke bottles have five completely different types of intellectual property invested in them. So, if you take a picture of a Coke bottle do you “own” the photograph? Not entirely. It depends on what you use that photograph for. If you make a T-shirt out of it and sell it, or issue a poster for sale, you’d better believe that Coke’s lawyers would be right there on the job. It is amazingly hard to figure out just what is “okay” to do with someone else’s work—whether the works in question are songs, pictures, or words. It’s also hard to say when it is “okay” to take a picture, even in a public place. I have an article on that coming out in a conference proceeding sometime this year.

I thought a long time before I posted Scott’s Karaoke Cowboy tape publicly. My internal monologue went something like this: to my knowledge, it was never available as a “commercial product.” My copy was freely given to me by Scott. It would be reasonable to argue that because it is unavailable as a commercial product, my distribution of it has no commercial impact. I am a legal owner of the tape, granted by Scott himself. I feel as if it has value to Scott’s friends and I am not attempting to profit from my distribution in any way (there are no ads on my pages, and no one is compensating me for it). However, just what “right” I have is murky.

If Scott’s widow, or Mary, asked me to pull the files down I would do so in a heartbeat. The real source of revenue (if there were any) for Scott’s heirs from his music would come from ASCAP or BMI performance royalties if his music were played on the radio. If a D.J. or two downloaded the tracks here and played them, then it might actually result in revenue for his widow as long as Scott was credited as songwriter/performer on their station logs.

But, to be realistic—I have seen the results in practice. Scott allowed his Dances With Downers tape (which included “The Ballad of Bill”) to be sold and also exchanged using DIY tape aficionados. He got a little airplay on college radio here, but quite a bit of airplay in Europe. BMI sent him a check around a year after that tape circulated—it amounted to around $1.50 for six months. But the check just plain blew his mind; he talked about just framing the damn thing. I think what thrilled him more than anything else was just knowing that someone else had heard his music.

That’s why I made the decision to go ahead and post those songs here. I thought he’d be happy that people heard them. There’s more I’d like to post too, but every time I ask myself about the possible repercussions. I didn’t make these songs, though in the case of the next three I’m going to post, I did record them. That still doesn’t mean I have anything approaching an exclusive. That word is fine, as a “newsroom” term” for landing a scoop. But no one owns the news, or history for that matter. Deciding what the right thing to do is has more to do with asking myself what Scott would want rather than any issues of copyright law. I know he wouldn’t want me to plaster my name on any of his art, even if I am the one who “owns” it.

Documentary, ultimately, is the best term to describe what concerns me. I would like to make public certain documents of my relationship with Scott. Documentary writers and photographers own the fruits of their labors, to be sure, but only within carefully demarcated boundaries. It’s hard to explain, especially within the confines of a blogger comment, or an abbreviated phone call. For me, it’s been an almost “holy” sort of work where what I’m trying to be true to is a spirit, something that by definition refuses to be caged. Especially behind a tiny little ©.

If you would like to look into copyright, I strongly recommend the Duke comic I mentioned earlier, as well as the book Doing Documentary Work by Robert Coles. Intellectual property law is boring and complicated, but the comic makes it more fun. Documentary, on the other hand, seems simple but is ultimately complex. Cole’s book really gets to the heart of the problem of writing about or picturing the world in a truthful way without taking up much time in your reading schedule. The “best practices” of documentary work are not the same as novels, but they are deeply related.

*After composing this, I notice that the offending copy of one of my photographs has been removed. That was never the point. The point is that you should do some research before you attempt to scare people with the little ©.

There is also a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law at that acts as a clearinghouse and information source regarding the use and abuse of copyright. You can find a lot of good information there too.