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