Joi Ito's Web

Joi Ito's conversation with the living web.

mural_piece1 mural_license_closeup

These pictures taken by Brad Neuberg

Mona Caron has created a beautiful mural on Church street near Market in San Francisco with a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License. So cool. More pictures on Brad Neuberg's site and her site.

via Creative Commons Weblog


Would graffitti on the mural constitute being a derivative work?

Cool pix Brad!

Looks like a No Derivatives license to me, not ShareAlike. I.e., this license:

You're right Aaron! I'm going to fix it now.

This brings up something I'd always idly wondered about - is a detail photograph (like the one of the license on the mural) or any substantially-incomplete presentation a derivative work?

Very cool. The train I ride to work each day goes by this mural, and I've been watching it evolve--it's very well done.

I know this will sound like some troll, but I am just wondering what the difference is that she has the CC or not?

It's not something that someone can "copy" as they would a digital photograph. If someone paints something similar, how does it differ from being "influenced" from the painter? (I don't know anything about copyright law)

Does the liscence just give us the right to photograph it? If so, did we not have the right before? In my limited knowledge of photography rights, I was under the impression that a privatly owned building had the rights to it's image. Even if she puts a CC liscence on her painting, don't we have to get the building owners permission to publish a photo?

I just noticed the no-derivs comment... I guess that rules out photography, which seems to be a derivative of the painting?

So how can someone use this in a non-derivative form? afterall, there is an original (which is on the wall) so anything else must be a derivative.

Kelly, I would imagine that the way someone could use the mural under its CC license would be as follows. First, imagine that you work for a nonprofit and wish to put out a community calendar of great community art. You could hire a photographer to take a high-quality photograph of the mural and then include it unchanged in a photo-calendar that you sell to raise funds. This would certainly be Non-Commercial, and its Non-Derivative because you haven't changed it. Also, you would need to give credit to the artist in the inside cover (Attribution). Also, what I've done on my site probably falls under the spirit of the CC license; my photographs, even though they are details, aren't there to create derivative works of art, but rather to show the original unchanged mural. However, IAMAL.

If the artist had used a license that included permission for derivative works, the CC license would make more sense. But, I think Kelly is right: without the derivative permission, there is no way to re-use the mural itself.

Maybe the artist's intention was that the work could be reproduced "whole" for non-commercial purposes, as long as attribution was given.

Perhaps another CC license would be useful: one that allows derivative works only in the sense of reproducing "whole" from one medium to another. hm, don't think that would work . . .

Correct me if I'm wrong, but since Brad is not getting paid to write his blog and he was reporting/commenting on what he saw on Sunday, wouldn't this fall under fair use? Seems that we as a blogging community need more education on copyright and fair use laws.

I think that there is a basic problem. In the future, people's business and personal lives will be interwoven much more tightly than they are today.

I think that it will be impossible to separate on-line images that are intended for personal use, from those that have commercial application. Often the same image will serve both purposes.

I don't see how the creative commons approach will be able to distinguish between the two.

Kelly, I think one of the important purposes for Creative Commons is to get people to think about what rights they would like to grant and then make them explicit. As Ashley says, taking pictures of it is probably OK under "fair use", but the problem with fair use is that it's not crystal clear. Companies like FOX will sue people to the full extent of the law and beyond some. That means that if someone feels like it, they can sue you and you have to defend yourself. Even if you win, you will have to pay a ton of legal fees. With a CC license, at least 1) you know the artist had the intention of sharing and 2) the CC license can be used in court to defend yourself. As Jay says, the license would make more sense with derivative works allowed.

The Copyright Act, at 17 U.S.C. §101
A ``derivative work'' is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation or any other form in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaborations or other modifications which, as a whole, represent an original work of authorship, is a ``derivative work''.

So we have to interpret this a bit, but I THINK a classic derivative work would be if you distorted, rearranged or mixed the images with other images. Copying an image isn't a derivative work. Therefore, I would assume taking photos are not derivative works. Putting myself in the shoes of the artist, I would assume she didn't want, for instance, people to photoshop themselves into the mural, etc.

Ron, I think the point is that current copyright law is basically broken when you think about how fluid content is flowing online. CC is an attempt at trying to make explicit people's intentions and trying to codify them in machine readable form. We are trying to take real world use cases where there ARE lines and help people choose which side they are on. Is it OK to sample your music? Do you mind if I include it verbatim in a commercial product? etc. There will be grey areas and these grey areas will increase. We will have to use are judgement as will courts, but it makes our job a lot easier if we understand a little more about the intent of the artist. Right now it is either "ALL RIGHTS RESERVED" which means you can't touch it except when you're willing to take a risk and use "fair use". But we know from experience that big studios will come after you anyway. You have to ask, is this artist going to get upset? etc. If the artist posts nothing, you STILL don't really know the disposition of the artist. Will the artist be mad if I copy the picture to my blog and link to their site with credit? Maybe I shouldn't do it. Etc. With a CC license you KNOW that the arist intended you to copy it and give attribution, etc. If you're not SURE even with a CC license, you can ask the artist directly, but the CC license definitely helps in the "permission seeking" aspect of creative life.

Sorry to ramble.

Someone I know who has more experience than me just told me that taking a photo could be viewed as a derivative work, but that the point is to try to figure out whether the artist would care/sue. It really is the intent of the artist, not the details of the law, that matter in the real world case.

Great link.
I love this sort of community based art. It brings a whole new meaning to warchalking too ;)

Thank you.