Animator. Director. Artist. Scapegoat.
To help me make a Mimi & Eunice Intellectual Pooperty mini-book go here.
Update: The $3,000 fundraising goal has been met! Any additional funds over the goal means more minibooks printed, which means lower per-book costs. POOPERTY FOR THE PEOPLE!
Back in January I was asked by the Brooklyn Museum to create a set of 11 iconic Vishnu avatars for an exhibit they’re planning in June. They didn’t offer a whole lot of money – an “honorarium,” they called it – but said the images could be under a Free license (they said CC-BY-SA was fine). I chose to do it because it was a cool gig, right up my alley; and I love the Brooklyn Museum and was excited to have my art be part of one of their exhibits. It turned out to be more work than I expected, but I was very pleased with the results.
Thus began a comedy of errors, the climax of which may have yet to be reached.
First they wanted revisions. Creating is fun, but revisions are not. For what they were paying, revisions weren’t part of the deal. We hadn’t signed a contract; they hadn’t even mentioned a contract. It was just an oral agreement for a modest sum of money (“honorarium”) and because the work would be CopyLeft they could do whatever they wanted with it, including revise and modify.
I hadn’t freelanced in years. Sita Sings the Blues took up nearly all my time between 2005 and 2011. I had gained a lot of self confidence during that time and was out of my old freelancer habits. Instead of doing whatever they asked and resenting them for it, I did something I’d never done before: I said no. I made sure to be polite. I consulted trusted friends, examined my motives, and was willing to accept any consequences, including being “fired.”
The worst case scenario would be that they wouldn’t use the art and wouldn’t pay me. I was more concerned about the art than the money. I like money too, of course; the best-case scenario would be that they would use the art and pay me. But if they didn’t pay me, I planned to release the art myself, so anyone could use it, including them. They would be free to use the art even if they didn’t pay me.
The happy fact is that once I realized saying “no” was an option, any budding resentment at their requests evaporated. They were just trying to get what they want, which is what everyone does. It fell on me to set boundaries. It’s not wrong to try to get what you want; it’s also not wrong to say no.
After I said no, they produced a contract – one that I never would have signed, even if they’d ever shown it to me before, which they hadn’t. The contract granted them unlimited revisions. Time passed, I politely stated and re-stated that the work was Free, and already completed; they could do whatever they wanted with it, and weren’t even legally bound to pay me.
Finally they removed the revisions clause – but added a new non-compete clause. This would make my work Free for everyone in the entire world to use, except me. I told them I couldn’t sign it, and they assured me it didn’t apply to the drawings I’d done, but anything I might do that would be “similar.” They said the non-compete language absolutely had to stay in. I again pointed out the work was done, they had all the image files, and they could do whatever they wanted with it, without a contract and without even paying me.
I understand why contracts can be useful: the producer wants assurance of payment, and the payer wants assurance of production. If either party fails to live up to their obligation, the other party can punitively refuse theirs. But I had already done the work. I didn’t need a contract to incentivize it. Of course I wanted to be paid, and I thought paying me would be the decent thing to do; but the work was done, and I placed no restrictions on it.
I don’t like contracts. They are overused and unnecessary in most cases. Often it takes more time to negotiate a contract than it does to execute the work itself. I agree it is uncool and wrong to promise money and not deliver, but I hope to never work with anyone who can’t be trusted to live up to such a simple promise. If they don’t, a contract is unlikely to make it better. I’d have to “go legal” on them to enforce it, and unless it’s a really huge amount of money they reneged on, I’d have to spend more money and time on the legal enforcement. Art and Law should stay as far away from each other as possible. I manage to get plenty of work done without contracts, and I manage to take in money as well.
Throughout all of this I refrained from releasing the images myself, so the Brooklyn Museum could have first use. First use bestows such a competitive advantage that copyright is irrelevant. If the Museum rolled out merchandise first, any potential competitors would be unlikely to catch up. The work would immediately be associated with the Museum, before any competitor could associate it with anything else. Any sane contract would have obligated me to grant them first use, but that wasn’t in their contract at all, even though the Free license was. Their contract was built on the assumption of copyright, just with a CC-BY-SA license inserted into it. (Law students take note: most lawyers have no clue about the implications of Free licenses. Please try to fix this.) The non-compete clause was pointless, but a first use provision would have been essential for them.
Anyway, time continued to pass, and they finally let me strike out the non-compete clause so I’d just sign the damn contract and make the project digestible to their bureaucracy. So I did, and they paid me! Slightly more than the initially specified “honorarium” too. This was back in March. I’ve been looking forward to the Vishnu exhibit ever since, eager to finally have my illustrations see the light of day in the glorious setting of the Brooklyn Museum.
The exhibit is set to open in June. It should be really cool! But it won’t include my illustrations, because today (May 5) they informed me their director wants to “take it in another direction.” Yep, they dropped my art, with just a few weeks to go.
I’m really glad that I specified a Free license from the very beginning. If I had granted them a restrictive copyright, then when they axed the art, no one would be able to use it. So here’s yet another benefit to Free Culture: a client can’t kill it.
Addendum: As Terry Hancock wrote in the comments below: “in the end, the museum subsidized an enrichment of the commons, for which I am grateful to them.” Me too!
All images CC-BY-SA. Click for 640-pixel-square PNGs with transparent backgrounds. High resolution PNGs here. SVG files here.
Please don’t ask my permission to re-use my work. YOU ALREADY HAVE PERMISSION. Please copy, share, re-use, redistribute, edit, modify, sell, etc.
Asking permission wastes your time, and mine. You might not mind wasting your time. Many people think asking for permission is a “sign of respect.” But what about my time?
Information (including all of my work) is not scarce. Attention (time) is.
Emails get lost in spam filters. They get lost amid the hundreds of other emails in my inbox. I’ve been known to take vacations and actually get away from my computer for a few days – something I should be doing more often. So what happens if you don’t get any response to your permission request? Do you not reuse the work? A work that has been explicitly made Free in the hopes you will reuse it? Not reusing the work harms the work, and harming a work is disrespectful. Delaying reusing the work likewise harms the work, in smaller increments.
Suppose a “respectful” email asking for permission which has already been explicitly granted doesn’t get caught in a spam filter or lost in some other glitch. Suppose it actualy makes it into my inbox. Now I am obligated to respond – the requester essentially said, “I’m not going to use this work unless you respond.” As “respectful” as this sounds, it places an unfair burden on me. The work, and any use of the work, should not be held hostage pending my checking and responding to email.
It is not “respectful” to make me do more, unnecessary work.
More importantly, asking permission is bad for the work itself. If you refuse to reuse the work unless I send you an email, you are blocking an expression or distribution of the work. How many days or weeks or months are you willing to put it off pending my ability to process email? Or worse, someone thinks it’s “respectful” to require me to sign papers and mail them back. Yes, this happens. I have such paperwork sitting right here, telling me that unless I sign it and mail it back, they won’t use the work they already have explicit permission to use. How is it “respectful” to make me jump through more hoops before they redistribute or remix a work I’ve made explicitly Free?
If you want to show respect, please send me something like this instead:
Dear Nina,
I thought you might like to know I’ve reused _________________ in _________________. Check it out at (insert URL here). Thanks for making the work Free!
Love,
Someone Who Understands Yes means Yes
Ahh, lovely. Thank you!
A complaint I hear often is that nowadays thanks to the inerwebs, not only do artists “have to give their work away for free” but they also “have to be businessmen.” HA! One goal of freeing my work is to free me of paperwork, contracts, and the role of manager – and what is having to oversee and administrate every re-use but management? In the “Intellectual Property” model, artists either have to do much more negotiating and managing and paperwork, or they have to pay someone else to do it for them. They have to be businessmen, or hire businessmen. And hiring businessmen (agents, lawyers, etc.) still requires much paperwork, negotiating, and contracts.
Some still insist that I’ve “maintained more control” over Sita Sings the Blues. The point is I have maintained no control over it, and that benefits me. The point is I don’t have to be a business(wo)man. The point is that other people, the crowd, distribute the work, and cost me nothing.
As long as they don’t ask for permission.
I’ve mentioned quilter Leah Day here before, and will mention her again. Leah “e”-teaches me and countless others how to Free Motion Quilt via her online Free Motion Quilting Project. I wrote about her refreshingly open attitude and progressive business model on Techdirt a few months ago. But I’m posting today to bring your attention to her new informational copyright page, which is so beautiful it almost brings a tear to my eye. This is how it’s done, people.
Just a reminder to please please share, copy, email, post, re-post, link to, etc. my daily comic strip Mimi & Eunice. They’re competing against everything else on the interwebs for limited attention, and only you/me/us can help get them out there.
Here’s today’s, posted via the super-convenient “embed” code on every strip:
Obviously I’m offending at least as many people as are becoming fans, so it’s all the more important the fans share it.
Like everything I do, all Mimi & Eunice comics are Free for any use whatsoever. ♡ Copying is an act of love. Please copy & share.
This very short, very concise, very understandable article by Rich Bailey is probably the best popular introduction to me and my copyright/copyleft issues. First published by the Epoch Times, I re-post it below.
Continue reading “My Copyright Story In A Nutshell”