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To © is Human

The views expressed are those of the author and are not necessarily those of Scientific American.

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Pierre Brassault. Tillie Cheddar. Luk Khang. What do these artists have in common?  Their work is open source, and completely open to reproduce without copyright protection. This is not to say they are on the cutting edge of the Cory Doctorow-style “maker” business model.  Their work is free from copyright because these artists are not human.

"There's No Way Out" by Sri-Siam of The Elephant Art Gallery.

Copyright is a complicated topic, but one worth exploring on Symbiartic from time to time as illustration and art are propelled headlong into our digital age.  At its root though, copyright is granted by creation of a work.  You cannot copyright an idea or style (and you cannot copyright scientific facts as you discover them); but you are granted automatic copyright over a finished work, whether a sketch, a poem, or a logo. Most of the ins and outs of copyright law are upheld internationally by the Berne Convention of 1886.

I should correct that earlier statement.  Copyright is granted by creation of a work — by a human. Animals and machines cannot hold copyright on their work. Will there come a day when computer spam-bots stand motherboard-to-shoulder with chimpanzees to demand their copyrights?

"Oeuvre 5" by Congo.

It’s fascinating that as a society we have created copyright in this human-centric, chauvinistic way.  Perhaps if more structures and creations by animals were considered art, or the definition of “art” were less slippery, paintings by animals would be less surprising. Copyright does not have to extend to a professional, and is automatically granted to works when they are complete, and yet, cannot be granted to an animal.  From the IP Mall, chapter on Copyrightable Matter: Pictorial, Graphic and Sculptural Works:

503.01 Style and artistic merit. The registrability

of a work of the traditional fine arts is not

affected by the style of the work or the form

utilized by the artist. Thus, the form of

the work can be representational or abstract,

naturalistic or stylized. Likewise, the regis-

trability of a work does not depend upon artistic

merit or aesthetic value. For example, a child’s

drawing may exhibit a very low level of artistic

merit and yet be entitled to registration as a

pictorial work.


And yet…

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product

of human authorship. Works produced by mechanical processes or random selection

without any contribution by a human author are not registrable. Thus, a linoleum

floor covering featuring a multicolored pebble design which was produced by a

mechanical process in unrepeatable, random patterns, is not registrable. Similarly,

a work owing its form to the forces of nature and lacking human authorship is

not registrable; thus, for example, a piece of driftwood even if polished and

mounted is not registrable.

It’s also human to feel pity for the unrecognized mechanical pebble-linoleum artisan, I suppose.  Will it be a sign that the Singularity is near when we begin to recognize the copyright of machines?  Or will copyright become a completely outmoded concept?

The one area of copyright I would like to see continue are Creative Commons Licences. These allow for free sharing of artwork, similar to the way we treat art by elephants and chimps, with the added caveat that they must be, at the very least, attributed to the artist.  It’s a good and fair practice in the online world to at least cite the author, human or not.  I mean, what are we; spam-bots?

If you’re blogging and unsure of how to cite an image, I’ve previously posted a short list of  5 steps for proper image use:

  1. Go beyond Google Images or Wikipedia to the original photographer, illustrator or artist.
  2. Check for a Creative Commons Licence*.
  3. Ask. Just ask if permission is unclear.
  4. Credit the photographer, illustrator or artist by name.
  5. Link back to their site.

Taking at least these 5 steps helps ensure that some respect for image makers remains, no matter what species they are.

"Unicorn Tapestry" by Tillamook Cheddar, done in the Russell Terrier-digging style.

If you’re interested in further reading:

Glendon Mellow About the Author: Glendon Mellow is a fine artist, illustrator and tattoo designer working in oil and digital media based in Toronto, Canada. He tweets @FlyingTrilobite and is on Instagram. You can see Glendon's work-in-progress at The Flying Trilobite blog and portfolio at Follow on Twitter @symbiartic.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. anatotitan 12:51 pm 07/26/2011

    Here’s a question I’ve had about CC licenses and non-commercial use. As well, I suppose about fair use in the traditional model.

    I blog. My blog has evolved to be a mix of different kinds of content. There are original essay-style posts. There are link roundups. There are posts sharing the work of an artist. I don’t make any money from the blog at this point. It’s a hobby that has cost me a bit of money. So, no conflict with CC over noncommercial use or, as far as I understand it, traditional fair use.

    Now, say I start sharing links to an online store featuring my own work. I post new pieces of my creation to advertise what I do and hopefully entice people to purchase something. Now, the blog has morphed into something different. If I am able to sell anything, it will largely be because of a reputation I’ve built with the blog’s readership. Now, perpetuating the blog is also, ideally, perpetuating my business. Each image I share, while not making me money directly, is part of what could be seen as an income vehicle.

    Just something I’ve been pondering, and wondered if it is an important point. Is it even an issue, or is it just a wild thought tangent?

    Link to this
  2. 2. Kevbonham 8:04 pm 07/26/2011

    I usually get stuck on step #1. If you find a good image through google image search, but it’s not obvious what the original source is, how do you find out?

    Link to this
  3. 3. Alex Wild 10:52 pm 07/26/2011

    Good advice, this, but be careful with Creative Commons. If your use of an image is in any way commercial- even if just to run Google Ads along the side of an otherwise private blog- you may be violating the terms of some CC agreements.

    Creative Commons is a good thing, but easily misunderstood. I don’t CC license my images for that reason. Too many people think of CC as a statement that abolishes copyright, when in fact it is nothing more than a standardized licensing contract under existing copyright laws.

    Link to this
  4. 4. Glendon Mellow 10:58 am 07/27/2011

    Kevbonham, if you’re trying to find an original and having trouble, two quick ways I’ve found are to either crowdsource the question to Google or Facebook if the people in your networks have similar interests, or try a service like TinEye. I hope to talk about TinEye in a future post, but essentially, it searches images online using a digital fingerprint of the image. It doesn’t find everything yet, but is surprising when it works.

    You raise some good points about CCL, Alex, and users do have to be careful. I’ve had some success by enforcing the rules it spells out when my images have been displayed online incorrectly. ISPs will usually pull the images from their users pretty quickly if something is in violation.

    Link to this
  5. 5. Glendon Mellow 1:35 am 07/31/2011

    anatotitan, my apologies. For some weird reason your comment was stuck in the spam filter and I just released it. No, your thoughts are not a wild thought-tangent. It’s a good question.

    Here’s my answer. Others may disagree with me here.

    My understanding of Creative Commons non-commericial licenses, is that they primarily bar anyone other than the image creator from freely directly using the image to make money: swiping the image from a website to sell as posters or t-shirts for example. The Non-derivative of the licences says you cannot alter it or use it in mash-ups.

    I think if you post a mixture of other creator’s content and link sometimes to an online store of your own wares, you should be free and clear. You’re not impinging on the creator’s ability to sell those images: they are free to do so, and you helped advertise them. Copyright isn’t only about being able to make money from another person’s work though. It can also have to do with intent. I have my own artwork mostly under a CCL non-commerical, non-derivative, must-attribute licence. What if a non-scientific, nasty blog post promoting a world view I disagree with (bigotry of some kind, let’s say) uses my art and correctly attributes it and follows everything on the licence?

    I honestly wouldn’t have a lot of recourse without lawyer fees. I could ignore it if that’s best, but I doubt it would be. I’d likely try to make noise online to publicly distance myself from the site using my image.

    Link to this

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