One of the few things about copyright law that's confusing on its face but ultimately makes sense to me is the distinction between composition rights and performance rights.

If a song's in the public domain, such as "Auld Lang Syne" or some old folk song that's been with us since time immemorial, it seems weird that it's possible to copyright a recording of it. "I got a copyright strike for Man of Constant Sorrow?! That song's almost 100 years old!" Sure, it's probably even older, but you used the recording of the song from the O Brother Where Art Thou soundtrack, and that's only 22 years old. You're free to make your own version of the song and use it, but you can't use someone else's performance of it.

Now obviously I have no interest in protecting intellectual property of the Universal Corporation, fuck 'em, but it works the other way, too: if an independent artist made their own cover of the song, Universal wouldn't be able to use that version in their film without paying them, and that's a good thing. I'm bearish about "intellectual property" as a concept, but this is the system we have, and this is one of the few areas where individuals are protected from corporations.

Now, whether an individual would have the resources to sue Universal for stealing their cover is another question, and the letter of the law is worthless in a system where the more powerful entity can buy justice, but it does discourage corporations from stealing from people willy-nilly. Just because they'll probably get away with it doesn't mean they want the legal headache and bad PR.

Think of it as a masterlock on your shed: it's a cheap piece of shit that anyone can bypass with a bare minimum of effort,¹ but its presense prevents attacks of opportunity. Sometimes all you need is to discourage people walking down the street from seeing an unlocked shed and helping themselves. Sure, sometimes your bike is going to be stolen, and it sucks. But that doesn't mean you shouldn't have bothered with the lock at all. (but if you can afford a better lock, please get one.)

copywrong

All that said, one thing I absolutely do not understand is how anyone can copyright a photograph of a piece of art. A museum can't own the digital image of a century-old painting just because they own the painting, and yet they often claim they do.

A photo of a painting might seem analagous to a cover of a song, but it's really not: a song needs both a composer and a performer or it's not a song. If you just have a composer, then all you have is notes on paper. If you just have a performer, then all you have are random discordant series of notes that nobody will want to listen to. Sometimes the composer and performer are the same person, sometimes they're not. The point is, there are two elements that couldn't exist without each other.²

With a photo of a painting or a statue, the painting or the statue is the art. The photo is just presenting the art in another form. Photography can be art, sure, but not all photography is art. Sometimes it's taking a picture of someone else's art. It's like recording a song off the radio and saying you own that recording. Yeah, it's slightly different from the original. There's some tape hiss and a bit of static because the signal wasn't 100% solid. There are even decisions that go into recording a song off the radio: the position of the antenna, the recording level of the equipment, how much of the announcer's intro to keep or trim out, etc; but that doesn't change the fact that the song is the art. The only transformation taking place is in the medium.

There are exceptions: Basinski's Disintegration Loops and the Caretaker's An Empty Bliss Beyond This World are examples of media transformation as art, and I really enjoy them. And there are visual examples as well, Warhol's soup cans and Lichtenstein's comic panels being the most obvious, and I'm sure there are examples in photography I'm not aware of. But we should all be able to agree that taking a normal photo of a painting or recording a song off the radio doesn't count as a transformative work, right? Not museums, apparently.

Something else worth considering is selling an e-book of a public domain novel. Even that has a bit of artistry to it: typesetting, layout and formatting are definitely part of the reading experience, and reading a nicely formatted version of Frankenstein on an e-reader is preferable to the text or HTML versions on Project Gutenberg. Sure, sell that for a couple bucks, copyright your specific version of it. The text is still the art, but it's at least 90/10. Taking a photo of a painting and demanding license fees is just charging rent. It's taking advantage of the fact that they own a physical object to assert that they also "own" the image of that object. They don't. The image belongs to the public.

conclusion

Here's what the Metropolitan Museum of Art has to say about The Four Trees by Claude Monet:

Due to rights restrictions, this image cannot be enlarged, viewed at full screen, or downloaded.

Come and get me, The Met 🦝

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1. The lockpicking lawyer. Masterlocks with INEXCUSABLE Design Flaws (youtube.com, 2019)↩

2. improvisation is a whole category of musical sorcery I'm not qualified to speak about, but when people are good at it, it's cool as heck. No one should be punished for stealing a chord progression or whatever during an improv jam.↩