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Night of the Living Infringers

"Kind of Bloop" cover

"Kind of Bloop" cover

Forget the inch; they’re after the mile. The IP reivers and copyright infringers are out in force, multiplying like rabbits. And, like all good zombies, they want to eat you — with a special hankering for your brains.

I’ve watched this past spring and summer with mouth agape as a deranged gaggle of “information wants to be free” advocates viciously attacked photographer Jay Maisel for intervening in a blatant infringement of his copyright and licensing rights for his photo of trumpeter Miles Davis, as used on the cover of Davis’s classic album Kind of Blue and replicated without permission on the cover of a “tribute” album, Kind of Bloop. These misguided, rabid latter-day Proudhonites, who argue that intellectual property is theft, vilified Maisel online at various sites, trashed his Facebook page, then physically vandalized the exterior of his SoHo home, studio, and office. (I’ll have more to say about this in a future post; meanwhile, see Jeremy Nicholl’s account of this lynch-mob action, “‘Jay Maisel Is A Dick': Freetard Mob Savages Octogenarian Photographer Over Copyright,” posted at The Russian Photos Blog on June 27, 2011.)

My own latest run-in with the IP reiver element happened, on a much more manageable scale, when I learned that one James Pomerantz had posted a facsimile of the published version of a 1971 article of mine at his blog, A Photo Student. I discovered this, quite by accident, when reading “Arbus: 40 Years Gone,” a recent post by Peter Marshall, at his blog, Re: PHOTO. Marshall makes some very supportive comments about my writing in general, which I find encouraging. But his lead immediately caught my attention: “James Pomerantz, who blogs as ‘A Photo Student‘ marked the 40th anniversary of the suicide of Diane Arbus a couple of days ago by publishing the obituary from the Village Voice at the time, written by A D Coleman.”

A Photo Student blog logo

Excuse me? A quick visit to Pomerantz’s site confirmed what Marshall had noted. I assume — giving him the benefit of the doubt here — that Pomerantz would not consider himself entitled to commemorate anyone’s death by “sharing” with all and sundry a bottle of vintage Merlot that he took without permission from his neighbor’s wine cellar. Demonstrably, however, he felt he had every right to mark the 40th anniversary of Arbus’s death by “sharing” my essay with visitors to his blog, without showing either me or the Village Voice the basic courtesy of asking permission. This post, dated July 26, consisted entirely of my text, with only a one-line introduction thereto — no commentary thereon, not even a pretense of fair-use rationale.

Born in 1977, Pomerantz, in his mid-thirties, is certainly old enough to know better. His CV, as posted at another website he publishes, indicates that he received his BA from Columbia University in 2003 and his MFA from the School of Visual Arts in 2011. Clearly, both these schools failed to ground him in an awareness of copyright law and intellectual-property issues — or else he slept through those lectures. If the former, that’s a lamentable lacuna in their curricula. Either way, it’s an embarrassment for those two programs to have one of their graduates stealing in public.

Alix Strauss, Death Becomes Them (2009), cover.

Alix Strauss, Death Becomes Them (2009), cover.

Pomerantz’s behavior in this situation was irresponsible, unprofessional, rude, and immature. Not to mention illegal. Responsible, professional, respectful, adult handling of the desire to republish such material gets exemplified, as it happens, by the usage of the very same essay in the very same form — facsimile reprint — in Death Becomes Them: Unearthing the Suicides of the Brilliant, the Famous, and the Notorious, by Alix Strauss (New York: Harper Paperbacks, 2009). Strauss’ book reproduces the same article; but she solicited permissions from me, and from the Voice, included my copyright notice and a credit line for the newspaper, agrred to send me half a dozen author’s copies, and paid me a fee that I kept extremely modest. As a result, I have great respect for Alix Strauss, and nothing but disdain for James Pomerantz (who apparently snagged the scan in its entirety from Strauss’s Flickr page for her book, assuming it was free for the taking — instead of linking to it).

On July 28 I emailed Pomerantz as follows:

It’s come to my attention that you have seen fit to post at your website, A Photo Student, what appears to be a scan of my Diane Arbus obituary, “Diane Arbus: The Mirror is Broken,” as it appeared in the Village Voice on August 5, 1971.

You have done this without my consent and, I assume, also without the permission of the Village Voice. Copyright law requires you to obtain both my agreement for the use of my text (since I control copyright and all subsidiary licensing rights for that essay) and the Voice‘s approval for your reproduction of its content — layout, design, etc. Such approval by either party is not automatic, of course, and may involve fees, inclusion of copyright notices, and other requirements.

Since the Voice is a copyrighted publication, and I have independently registered this essay of mine with the U.S. Copyright Office, you’re in prima facie violation of copyright, and liable for damages should I choose to file a copyright-infringement lawsuit. You’re also vulnerable to the closure of your website under the Digital Millennium Copyright Act (DMCA).

Because you publish your own website, this communication with you suffices as legal warning. You are hereby formally notified of this violation of copyright, and put on notice that unless this work of mine is removed expeditiously from your site and replaced with a public apology for this infringement, the DMCA will be invoked and a legal proceeding initiated.

I note that you’ve subtitled your site “Because we all have a thing or two to learn . . .” Perhaps there’s a teaching moment in this for you, and for your site’s visitors.

The URL of the page of your site on which the pirated material appears:

<http://www.aphotostudent.com/2011/07/26/diane-arbus-obituary-the-village-voice-1971/>

I have saved a PDF and screenshots of the infringement as evidence.

Yours,

A. D. Coleman

I also posted the following comment, responding to effusive comments left at the blog by assorted readers thanking him for “sharing” this “find”:

This is not a “find.” James Pomerantz didn’t “find” this essay of mine, which was never “lost.” It appears in my book Light Readings, and elsewhere in print. What Pomerantz has so generously “shared” with you constitutes copyright-protected intellectual property of mine that he pirated. Shame on him, and shame on readers oblivious to such matters who thank him for his theft.

The fact that these visitors enjoyed the essay and praised my writing didn’t have any bearing on my decision to require its removal. I don’t feel gratified when someone else benefits from possessions of mine that a burglar has fenced.

The infringing material came down within an hour. Pomerantz obviously knows enough not to run afoul of the DMCA; it’s a hammer. (I’ll also hazard a guess that Andy Baio’s recent well-publicized $32.5K settlement with Maisel served Pomerantz as a cautionary tale.) No apology, just a note: “Obituary removed at request of its author.” An hour after that, he’d removed all the comments about my article, replacing them with some embedded Arbus-related videos. The next day, he’d replaced his unauthorized scan with a link to the article where it appears, by license, at the Strauss site. And he’d restored the comments . . . except for mine, natch. Apparently he wants his sins to pass unnoticed; so much for “Because we all have a thing or two to learn . . .” Thus the “teaching moment” will happen here, not there.

Juan of the Dead poster

Browsing Pomerantz’s site before and after sending that email, I discovered that it contains a bewildering mix of material, much of which appears to have come in its entirety from other publications, the licensing status thereof in no way clear. Some, in video format, is embedded from YouTube and other sources, perfectly legit. Some gets presented in portal format; the section named “Photo Writings” consists entirely of links to Amazon.com pages for books containing the named texts, interspersed with a few links to texts posted at other websites. While I can’t verify that those are all online with appropriate permissions, there’s nothing out of line about linking to them.

But then, in the posts themselves, there’s all kinds of stuff jumbled together. Given Pomerantz’s cavalier attitude toward IP, I wouldn’t assume that he’s sought permission for publication of anything that’s there. So I’d advise that educators should exercise wariness in using this as a teaching resource; the enabling of serial infringers isn’t much different from doing the infringing yourself, and most schools have stringent prohibitions against the use of pirated materials in the classroom.

The “information wants to be free” zombies are lurching and slavering wherever you look nowadays. They’re drawn to the scent of the sweat of your brow — from their standpoint, that’s just tasty gravy. Disregard them at your peril. If you generate IP, you need to find your inner Rick Grimes. Or, better yet, your inner Juan of the Dead.

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13 comments to Night of the Living Infringers

  • Night of the Living…

    What comes to mind is very simple, why should someone work-when you have already done the work. They have the internet, they know how to find the Google search area-“Bam” the work is done. I think it would be safe to say, if you want to keep something secure-don’t put it on the internet. But, today we need to get the work out-no matter your discipline.

    Young writers are no different than Picture Editors or some Photographers, photographers call it “Sampling”, which is still ripping some one off and taking the credit for their work. It’s sad to say, I don’t really see any end in sight. I have sued people over this, and that process takes years.

    I can recommend to James Pomerantz a new book written by Rachel Shteir titled “STEAL”. Although this book does not deal with the theft of intellectual property or any basic copyright laws, a thief is a thief-he may not see the connection-denial like any mirror can only be seen when both eye’s are open.

  • Jack Reznicki

    Mr. Coleman,

    One of the things that always bugs me about Stuart Brand’s “Information wants to be free” quote is that it’s always taken out of context which alters the entire thought. When you read the whole quote, it takes on a different meaning, at least to me-

    “On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.”

    Thank goodness and luckily our copyright rights are baked right into the Constitution or we as artists would be facing terrible times these days.

    Another good article about appropriation and how it harms the artist appropriating the work is by critic Jerry Saltz, who wrote insightfully in an article in New York magazine, titled “Generation Blank”. In the article he points out that the current trend in artists referencing and commenting on previous works, has become so widespread that he comments on the lack of originality in the work. He writes “Their art turns in on itself, becoming nothing more than coded language. It empties their work of content”. He also states later “…. it stunts their work and by turn the broader culture.”

    I’m very sorry to have missed your lecture recently at the National Arts Club. I had an engagement I couldn’t break and would have loved to hear you.

    I do a lot of writing and lecturing on copyright for photographers. I have a book out on such issues I co-wrote with IP attorney Edward C. Greenberg.

  • Please tell me and this blog’s readers a bit more about the book you co-authored — title, publisher, etc.

    My problem with Stewart Brand’s formulation is that it shows an extremely limited understanding of the costs involved in the production of information. “Information wants to be free, because the cost of getting it out is getting lower and lower all the time” is thus an extremely naive and (pun intended) uninformed assertion. “Getting it out” represents just one of the expenses.

    Even the simpler process of acquiring data has costs that go beyond the expenses involved in distribution. Someone has to determine what data is to be gathered and why, evolve a plan for accumulating it, then compile it into some form that enables its distribution.

    Turning any kind of raw data into information — informing it, giving form to it — involves more work, and thus, inherently, yet more expense. All of which necessarily precedes any decisions about “getting it out” to its intended audiences.

    Beyond that, I caution against ascribing motive to inanimate stuff. As I put it in another post, information no more wants to be free than does cat food.

  • an apology by mr pomerantz would have been nice. to take away some of the seriousness, I want to add that in switzerland, we call someone a “Pomerantze” that is lazy and sits on his ass a lot. a good name for a blogger too lazy to mention where he quotes from and not bothering to ask for permission…..

    • Do you know how the name “Pomerantze” became a Swiss epithet? Or is that lost in the mists of Swiss history?

      Whatever the backstory there, this particular Pomerantz didn’t “quote” from my article. That’s perfectly legal, and appropriate, and not objectionable, and requires no permission, assuming the quote contains only a modest portion of the original and the source gets credited. This internet publisher put the entirety of my essay online, in a digital facsimile of its original newspaper appearance. That doesn’t qualify as quotation.

  • Dear Allan

    How I do love your writing and the issues you raise! Gene and Barbaba Bullock-Wilson and I had been discussing in June what seemed to be a hiatus in the publishing of your blog, and the next day there you were.

    Your latest missive about IP is right on. I remember a moment in the green room after a concert in Berlin when I was asked to autograph one of my CDs. It was a well-made but obviously home-made pirate copy. Amazing.

    That of course is a different type of theft from what you are talking about, but the IP issue is bigger than ever because of the internet. I have been stolen from in exactly the way you described in your article.

    What I love about you is how you tell it like it is without mincing words or being coy. I enjoy the writings of Anthony Bourdain and Christopher Hitchens, and, although there are many differences in your styles, all three of you have the wonderful knack of calling someone an asshole in the most amusing and readable way.

    I think the best critical writing deals with reality on multiple levels – from the most current and local details to the larger over-arching issues. When I read a concert review by GB Shaw written in London 100 years ago, I may not recognize the name of the performer or even the title of the work, but the review touches on important issues beyond those specifics and I learn something from the article or am challenged to think. A life of learning and thinking, is that too much to ask? :-)

    By the way, knowing what I know about you, Hitchens, and Bourdain I am quite sure that I would greatly prefer actually spending time with you! I hope that will happen sometime here on the west coast.

    With lots of admiration

    David

  • I understand what happened with your article. the fact that I used the word “quote” in my comment has to do with me writing this comment really fast and english not being my mother tongue. so sorry if I wasn’t clear. “Pomeranze” (it’s actually without the “TZ”) must be a swiss epithet, but I’m not sure about it. I think it has to do with the noble circles this rare fruit was reserved to. to call a person a Pomeranze means associating that person with qualities the swiss common man used to associate with a noble person. qualities like parasite, lazy, ignorant about what’s going on in the world, etc. basically all really disdainful characteristics.

  • and yet his posting caused me to buy your book…

    • This implies that

      (a) a perfectly legal link from Pomerantz’s site to the site where my essay appears with permission would not have “caused you to buy my book”;

      (b) your purchase of that copy — from an unstated vendor, at an unstated price, almost surely at no profit to me — somehow counterbalances Pomerantz’s piracy of my essay; and

      (c) that I should therefore forgive the theft, or even give thanks for it.

      Surely you jest.

  • nope I don’t jest…
    neither do I justify… left or right.

    Not that it matters more than a syracuse snow ball…
    1) nope it wouldn’t have reminded me fully…. links don’t matter
    2) actually 3 books from amazon, and profit never counterbalances any thing, other than loss … it’s only money, not ideas.
    3) never forgive. never give thanks.

    please don’t call me shirley

    • None of the books you bought are in print. I make nothing from dealers’ resales (nor does any other author). Nothing wrong with anyone buying them that way, of course. I certainly hope you enjoy them.

      One book or three, even if the sale brought me a royalty, we’re talking apples and oranges here. A book sale doesn’t in any way counterbalance a theft of my IP. That unauthorized post may have benefitted you, by bringing my work to your attention. I prefer that to happen via legal, authorized publications of my work. If my stringency loses me a few readers who might otherwise come to me via pirated texts, that’s a price I’m willing to pay. And I think that choice is appropriately mine, not anyone else’s, to make.

  • Stephen Goldstein

    Allan:

    I read your obit of Diane Arbus and thought it a thoughtful and masterful piece of writing.

    I remember seeing it in 1971 when I was a regular Voice reader.

    While I respect your copyright of the piece I was still glad to have been able to see it.

    I agree that your permission should have been asked to run it. If it were on the net this is becoming a more difficult sell all the time.

    Such is the internet that everything seems up for re-purposing anytime although this looks like the blogger actually scanned the article from the paper.

    My graphic design students (I teach at FSU with Peter Laytin) often think everything out there can be used in their work as if it were their own.

    Regards,

    Stephen Goldstein

    • Thanks for the good words about my writing. Great (if a bit scary) to hear from someone who’s been reading me for 40 years.

      Per my original post, the scan of that article of mine is online legally — by permission, with a small payment involved — elsewhere. I assume that Pomerantz found it there, since the scan that appears there and the scan that he posted briefly at his blog seem identical.

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