Comment: There’s No Such Thing as a Compulsory License for a Photo

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My friend Andy has a terrific post up about his ordeal settling with the photographer Jay Maisel over the threat of a copyright lawsuit. Chances are if, you’re reading this, you know about that. If you haven’t ready Andy’s story, go and read it and then come back.

There’s one pointed question I’ve seen crop up in a number of conversations about the settlement:

Isn’t it wrong that Andy chose to pay the licensing fees for the music but not for the photograph?

This question makes the assumption that Andy could have paid the licensing fees to Maisel like he did for the music. He couldn’t have. This is because Jay Maisel refused to license the image and there’s no compulsory license for photography like there is for musical compositions.

A compulsory license is what it sounds like: the owner of the underlying musical composition is required, by law, to license it to anyone who wants to use it at a predetermined rate. This prohibits song writers from picking and choosing who gets to perform their works. It also allows Andy to license, at a fair rate, the underlying song compositions from a Miles Davis album to make a new album of original recordings (remember, copyrights to recordings are different from copyrights to the compositions of a song).

The copyright of photographic works, unlike works of music composition, is not subject to a compulsory license.

This means that photographers, unlike song writers, can forbid anyone from reusing their work, whether it is for a poster or for an album cover.

Now, artists like Jay Maisel obviously enjoy this absolute control over their work because it lets them dictate who uses their art and when. Song writers, unfortunately aren’t afforded to this their published works.

So while no one could have prevented Andy from recording an album of remixed music written by Miles Davis — not even Miles Davis himself if he were alive — the same does not hold for a photo of Miles Davis.

Remember, Maisel admitted he would have refused to license to Andy the rights to the photo. So Andy’s only option, short of not using the photo at all, was to use the 8-bit remix cover and wager it was a fair use.

That Andy could, in one case, hire artists to legally remix music by paying a compulsory license, but in another case had to make an expensive and risky bet on fair use (a bet that didn’t pan out) feels unfair.

Put another way: why are composers required to license their compositions at a fair rate to anyone, but yet virtually every other type of artist doesn’t have to play by the same rule?

I doubt anyone would argue that song composition is a lesser art or any less deserving of full royalties than other arts.

One reason is that the practicalities of compulsory rights for photographs (and other works) are hard to imagine. Music compositions are written, then performed, then recorded, whereas photographs are snapped and then printed. There’s no underlying right in a photograph (thank goodness) to its “composition” like there is for a piece of music. So that is part of why compulsory licenses for photos don’t exist.

But I think another part of the story is that the law has evolved the musical compulsory license as an implicit acknowledgement that music compositions are both maleable and fundamental components to our culture. Compulsory licenses make possible everything from karaoke bars to cover bands to remixes like Andy’s. The alternative — allocating complete power to composers over who reuses their work — yields transactional costs on culture that are simply too high. The law hasn’t felt the same way for the visual works.

So will other art forms, like photography, adopt compulsory licenses? I doubt it, but I can’t help but they’d be a great compromise in light of Andy’s settlement. I asked Andy over email whether he would have paid a mechanical license for the photo:

“Absolutely. If the laws and protocols for remixing photos were as clear and fair as covering music, I would’ve bought a mechanical license for the photo in a heartbeat. But the laws around visual art are frustratingly vague, and requiring someone’s permission to create art that doesn’t affect the market for the original doesn’t seem right. I didn’t think it would be a problem, especially considering the scope of my project, but I was wrong. Nobody should need a law degree to understand whether art is legal or not.”
This post originally appeared on Fred Benenson's blog. @mercredis on Twitter. Benenson is on the Rhizome Board of Trustees