Copyright is Out of Control

by on April 21, 2014 at 7:05 am in Books, Economics, Law | Permalink

I have written about patent and copyright law primarily from the perspective of an economist interested in the institutions and incentives that maximize innovation. As a textbook author, however, I must deal with copyright law in practice. Dealing with copyright law on the ground hasn’t caused me to change my views but it has made me more frustrated. I have also come to appreciate some of the subtler costs of the system. Two cases in point.

A lot of textbooks hire a photo editor to pick generic stock photos, this simplifies things because the bundlers pre-authorize permissions and prices. But we hand picked every photo in our book to illustrate a point which means that our permissions and legal staff often have to find owners and clear permissions on an individual basis. We are grateful that our publisher is willing to do this to produce a quality product but it sometimes leads to absurdities. For example, the publisher doesn’t like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.

The general lesson is that strong IP shrinks the public domain not just because it keeps things out of the public domain but also because it makes the public domain appear to be uncertain and dangerous. It’s as if clean, mountain spring water were freely available but people bought from the bottlers instead out of fear of contamination.

Copyright law is one of the forces behind the rise of the mega-bundlers. Mega-bundlers benefit from economies of scale in cataloging IP but there are also economies of scale in dealing with the legal system and insuring against/for lawsuit. It’s probably no accident that two of the largest bundlers, Corbis and Getty, are owned by Bill Gates and (Getty heir), Mark Getty respectively. (FYI, Piketty should have said more about this kind of 21st century rentier in Capital).

Here is another example. To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text. 

The distinction between the photo IP and the what’s in the photo IP is one only a lawyer could appreciate, as is the solution. And I mean that without irony. I am not critiquing our publisher or their lawyers. Bear in mind that this is coming to us from the very highest legal counsel of a multi-billion dollar firm. Thus, I do not doubt that the dangers are real and the legal analysis acute. The problem is copyright law itself.

The episode illustrates more generally how the complexity of copyright law has greatly elevated the power of lawyers. It’s no accident that the permissions director is one of the few people at our publisher whose signature is absolutely necessary before our book, or any book, can be published. 

I am reminded of Mancur Olson’s 9th implication in The Rise and Decline of Nations:

The accumulation of distributional coalitions increases the complexity of regulation, the role of government, and the complexity of understandings, and changes the direction of social evolution.

Michael G. Heller April 21, 2014 at 7:30 am

Oh boy, in Mancur Olson we do find compelling antidotes to Mr Piketty. In the pages surrounding the 9th Implication Olson is eminently quotable. The consequence of regulatory complexity is that – “The incentive to produce is diminished; the incentive to seek a larger share of what is produced increases”. Elaborate regulation creates the demand for specialists to deal with regulation, and then (of course) the specialists may “collude or lobby against simplification of elimination of the regulation.” Listen here, Mr Piketty, “If a society mainly rewards production or the capacity to satisfy those with whom one engages in free exchange, it stimulates the development of productive traits”. That’s the stimulus we want s’il vous plaît !! Problem solved.

ThomasH April 21, 2014 at 7:46 am

Copyright is a lot easier to fix. just go back to 14 + 14 years.

The Original D April 21, 2014 at 3:47 pm

This comment is perfectly juxtaposed with the one above it.

Sure, in theory copyright is easy to fix, but the entanglement of government with business means a lot of players have a powerful incentive — and the money to buy off politicians — to prevent if from ever being fixed. Copyright terms have only gotten longer over time, never shorter.

anon April 21, 2014 at 8:07 am

It’s not only copyright law.

States have different privacy laws that can also impact the use of supposedly “public domain” images, including signs.

When using photographs, the ownership and rights of any art in the photograph also comes into play, even “public” art owned by a city or other governmental entity.

Small publishers must be especially careful if they want to stay in business.

Rahul April 21, 2014 at 8:45 am

It’s not just Copyright Law but all IP law that’s broken. If you look at actual patent litigation the points argued upon are completely bizarre and quite unrelated from most innovation related concerns. Typical cases argue about the letter of law, how exactly a claim was written, priority dates & other such technicalities.

Most patents are not even filed because someone wants to protect a good idea but mostly to make sure a competitor is stymied by a patent thicket. Essentially it’s a system designed for gaming by lawyers playing under an unnecessarily complex & convoluted set of rules.

Art Deco April 21, 2014 at 10:13 am

Sounds like political economy generally. We could start shooting lawyers for sport. Leave the rank and file alone and just get the abusive prosecutors, appellate judges, and those benefiting from rent seeking activity.

Mark Thorson April 21, 2014 at 11:10 am

Those aren’t technicalities. The wording of the claims exactly defines what the patent covers, and if I can figure out a way to practice the invention that falls outside the wording of the claims, I can and should be free of the patent. Priority dates are just as crucial — if somebody already invented it, the patent is and should be totally worthless.

Rahul April 21, 2014 at 11:21 am

Yes, but we’ve reached the point where haggling over the exact wording of a claim has become the focal point. And finding wiggle room around existing claims has become a cottage industry.

Mark Thorson April 21, 2014 at 5:26 pm

The exact wording of claims has always been the bone of contention, because that defines the border between what is covered by a patent and what is not covered. This is the cutting edge in many cases of patent litigation. It’s not a “technicality” at all.

Z April 21, 2014 at 12:21 pm

I think the root of this is the cost-shifting basis of modern economies. Building a better cheaper product is no longer the way to riches, power and entrance into elite society. The way forward is to socialize costs, but privatize the profit. Facebook is not a real company. If they had to build out a network to reach a billion people, they would not exist. Instead those costs are spread all over the user base of the internet.

IP law is a similar game. It has become a way for the smart fraction to collect rents without incurring much in the way of costs. Patent trolls are just a modern version of highwaymen. The mega-bundlers that operate as clearing house for copyright law are running a protection racket.

Slocum April 21, 2014 at 8:09 am

Elaborate regulation creates the demand for specialists to deal with regulation, and then (of course) the specialists may “collude or lobby against simplification of elimination of the regulation.”

Yep. Here’s a nice ‘clean’ recent example of that phenomenon:

TurboTax Maker Funnels Millions To Lobby Against Easier Tax Returns

http://techcrunch.com/2013/03/27/turbotax-maker-funnels-millions-to-lobby-against-easier-tax-returns/

AndrewL April 21, 2014 at 8:24 am

Let’s say I wrote a textbook, and in the text book I use a photo of your text book right on the cover. My textbook talks about random things that economists say.

I took the photo of your textbook, so therefore I own the copyright to my own photograph, but the content of the photograph is another copyrighted work. Obviously you would object to me using a photo of your work to sell my work without compensation.

I think bottom line is that if you want to use something that is easily recognizable in your work, Someone created that easily recognizable thing, and that someone should deserve something for it (for a limited period of time of course).

derek April 21, 2014 at 10:22 am

Why should someone ‘deserve’ something for an image that they did not create?

The idea that you own something that is distributed in space without your input is absurd.

This is what the Great Stagnation looks like.

AndrewL April 21, 2014 at 11:09 am

They created the content of the picture. For example, Marvel licenses Capt. America to a film studio so they can make a movie about Capt. America. Then someone wants to use a still frame from the movie to sell a book (eg. using the image to illustrate a point in the book). You can get license from the film studio to use a frame from their movie, but the studio dosn’t own the copyright to capt. america. And so unless your use of capt. america falls under fair use, you can’t use (without getting permission from the copyright holder) it because you would be profiting off of someone else’s work (the person who created or owns the copy right to capt. america)

bcostin April 21, 2014 at 12:17 pm

In your example Marvel owns both the characters and the actual movie still/photograph in question, because they (or their licensees, or whatever) created both. But if you, just a random person, take a picture of a guy dressed in a Captain America costume, that doesn’t mean Marvel assumes ownership of your photo.

What they create belongs to them. What you create belongs to you. Creating something easily recognizable brings the creator many benefits, but it doesn’t magically give the creator rightful ownership of other things that other people create.

AndrewL April 21, 2014 at 12:52 pm

Taking a picture of some random person dressed up as Capt. America is sufficiently trans-formative to not trigger copyright, but using officially licensed imagery is, I believe.

Unless you modified the officially licensed imagery, or used it in another context to transform it into a wholly original piece of work or did something else that fell under fair-use, The original copyright would still hold.

Under Alex’s use case, just using the image to illustrate a point isn’t enough to trigger fair-use, he has to critique it or incorporate it into a wholly new and original work or something that falls under fair use.

Shane M April 21, 2014 at 6:11 pm

If you make a cake that’s shaped like Mickey Mouse ears you might be infringing copyright.
http://cakecentral.com/t/755664/for-those-that-sell-disney-hello-kitty-and-other-copyrighted-cakes
Is dressing up as your custom designed Captain America costume that far removed?

Derek April 21, 2014 at 12:59 pm

And they got cash when they sold the book. What happens from then on is not their creation.

cliff arroyo April 21, 2014 at 11:39 am

“Obviously you would object to me using a photo of your work to sell my work without compensation”

I think that the pubisher and not Alex would want compensation since they would own the copyright.

quadrupole April 21, 2014 at 8:33 am

Additionally… public domain is a rather a complex concept internationally. Many countries (particularly in Europe) have variety of creator rights that cannot be assigned cleanly, and so it turns out that its very very tricky to *truly* get public domain in those legal regimes.

wiki April 21, 2014 at 8:51 am

@quadrupole This makes the argument even stronger for limiting the number of years that copyright holds. Some form of 14 + 14 or even 50 or 10 plus the life of the creator (whichever is shorter) would at least limit the number of years that the system would affect. A shorter maximum copyright period balances the rights of the author against the transactions costs of an out of control, hard to define, and hard to cleanly regulate system.

Richard Gadsden April 21, 2014 at 4:45 pm

Some of those creator rights (droit de l’auteur) are not only non-waivable, they’re perpetual.

One is the right of the author to be identified with their work – in France (where this law applies) you have to identify the author on any work, even if they’re dead. If you modify it, then you have to ask the author whether they want to be identified with the modified version or not. Obviously, you can’t do that if the author’s dead, and that’s not a transferable right, so there’s a default that you have to say that it was derived from author X without their permission. Even if author X is Homer. Or Herodotos (as the French copyright notice on the film 300 said).

Marie April 21, 2014 at 8:51 am

Sounds like a bad solution for a real problem. Which seems pretty common these days.

One fix for the textbook writer could be to do what some of my old profs did years ago. They wrote out what they wanted us to know and then visited Kinko’s. No one bothers to sue someone for photocopying an image into a Kinko’s packet that is sold for $2.

When you profit using a complex system, you are going to be dinged by it. Efficiencies are lost and costs go up.

Dan Weber April 21, 2014 at 9:09 am

+1. Chutzpah is the guy selling the $250 textbook whinging about copyright law.

Rahul April 21, 2014 at 9:14 am

Course packet for $2?! What university is this!!

Marie April 21, 2014 at 10:28 am

Good state one, but a long, long, long time ago.

$2 went a lot further then. It might have been $10 or $15. Also, textbooks were not even proportionately as high and it was (to my memory) rare for a professor to require use of his own text.

I don’t know what the current equivalent would be, should anyone choose to use it.

Z April 21, 2014 at 11:37 am

The text book racket crept in during the 1990′s, I think. I recall reading about an English professor assigning his own works to students back in the 1990′s. Since his books were terrible, no one bought them other than his students, who were required to buy them. I forget the details, but that’s the gist of it. At the time it was described as a growing trend so I’m thinking we can date this to late 80′s early 90′s.

It is one thing to require the purchase of a ten dollar novel. Requiring the purchase of a $250 textbook is robbery.

Rahul April 21, 2014 at 11:54 am

The sad part is that it usually leads to a worse outcome for the students. Rather than using the best book for a subject one must become a Guinea pig for every professor’s halfhearted experiment at becoming a textbook writer.

Dan Weber April 21, 2014 at 7:54 pm

Those bozos who just took pictures don’t deserve copyright, but my text filled with my amazing insights does!

Jim April 21, 2014 at 9:26 am

You are way out of date on course packets. If Kinko’s did what you suggest they would be sued. Today Kinko’s is less of a printer than a copyright clearance center. It takes months to put packets together and that is with fair use and educational rights!

Rahul April 21, 2014 at 9:36 am

The easier alternative these days is to assemble a file & keep it physically on reserve at the library and / or upload it on a course website.

Marie April 21, 2014 at 10:34 am

O.k., but I’m not talking about compilations, I’m saying if a professor wants to write his own material and print it for the students’ use, he can go an old fashioned route. Substitute Lulu for Kinko’s. And even if you step on toes, then, it’s really unlikely to come back and bite you.

I publish a little booklet through Lulu and on Amazon. There are several sites that steal from it, wholesale. I’m certainly not going to sue. There’s no way I’ll get money out of it and it would cost money to get them to stop, then someone else would pop up. No way I could even get a lawyer to help me with that.

But if someone was selling my booklet for $150 through a major publisher, you bet it would be worth it to get a lawyer and sue.

Roy April 21, 2014 at 11:21 am

I have a colleague who wrote a tetxbook, a very good one, turned the copywrite over to his professional society, he actually hands out the books for free, but other instructors wanting to use it will just tell their students to join the society, $10 for undergrads, and then pay $25 for the book, which is a heavily illustrated science text.

I know several Canadian professional groups have done similar things, with the authors handing over the rights to the professional society. Of course my colleagues field is both very lucrative for stars and stars are largely defined in these areas by reputation among colleages, so I don’t expect this to be universal. My own specialty is currently planning on creating our own undergrad textbook which will be sold at cost to students. This is not totally altruistic, because authors will gain considerable prestige. But so far these texts have been signifigantly better than earlier textbooks in their subjects.

anon April 21, 2014 at 11:53 am

Many small publishers who publish highly technical or specialized books for small audiences worry about the ripoffs. Some incorporate a physical mark to indicate authenticity to at least not pay money for returns of ripoff copies.

Many small publishers also license popular portions of material via Creative Commons if they get many requests for or discover that a small portion is being used. Much easier than having to approve the legitimate requests, and they can use that smaller portion to market the larger work.

Eric Rasmusen April 21, 2014 at 2:49 pm

That’s a good idea. According to the letterof the law, the professional society is in just as bad shape as a for-profit big publishing corporation. If we think of the copyright owner as Holmes’s Bad Man, though, he will realize that (a) the courts will, for non-legal reasons, favor the non-profit copyright violator, and (b) the professional society has so few assets it isn’t worth suing them.

Balthy April 23, 2014 at 12:18 pm

“No one sues Kinko’s”
Except literally one of the most famous copyright law cases

Basic Books, Inc. v. Kinko’s Graphics Corp.
http://fairuse.stanford.edu/case/basic-books-inc-v-kinkos-graphics-corp/

Z April 21, 2014 at 9:11 am

There are a lot of people engaged in remunerated activity. It is not real work they do, just activities they perform for money. The army of Bartlebys has an even larger army of scriveners in their employ. Most of what these people do is pointless. Some portion is harmful and evil. The proportion never changes so the bigger the army, the more useless and evil acts you get as a result.

Ceilo Azule April 21, 2014 at 10:14 am

The problem (s) with copy write law is the same as with the majority of this country’s problems: “GREED” & the Over Analyzation of Simple/Easy Fixs, Should one be allowed to protect their ideas, patents, of course but the end must justify the means & for that one need look no further than at whom is complaining (corporate Imerica), Are the problems the result of Mom & Pop/Individuals copying & pasting an image/logo/design of another or one where corporate Imerica is simply trying to stifle Innovation?

ummm April 21, 2014 at 10:18 am

It has really gotten out of control. You can’t borrow an image without being heckled or sued. Nowadays you go on any major website and even the most mundane image like of a picture of a guy drinking milk out of the carton has lines of trademark legalese and a link back to the source of the time. 10 years ago we would have just copypasted the image and that would have been it.

Marie April 21, 2014 at 10:45 am

And 20 years ago? Twenty years ago, I might have photocopied a cartoon out of a magazine and pasted it into a family newsletter without worrying a bit about copyright infringement, which people do today with blogs etc. all the time.

But if I wrote a manual or text and published it through a major publisher, certainly I could not have just picked up a picture here or there and used it without permission in a product I was selling.

Now here, we’re talking about having tacit permission, and just not being able to easily confirm it, right? So, only work with sources you can personally contact and confirm. Or do the leg work. Or take the chance. If the photographer sues, he’s not getting millions, right? Just a probably inflated price for the photo you used. I’m not getting the issue, it’s like saying there’s an unopened can of coke on the curb and it looks like no one wants it. Either take it and drink it and take the chance that someone’s going to come up and protest you took his soda, or leave it and go buy your own soda. There’s a ton of content out there now as compared to years ago, that doesn’t give us the right to just assume someone else’s photo can be used for our profit, does it? Sorry if someone has to go to the trouble of finding the photographer and confirming his right and his permission, the alternative is to take the picture yourself, right?

What am I missing? Are we talking about getting the permission of the guy who owns the house that was photographed, something like that?

Now the idea that some guys are taking advantage of peoples’ unwillingness to actually deal personally with the photographers whose work they are using by selling bundles and lawsuit protection, that’s nasty. But hey, I’d just never buy from folks like that. Others would just call it one more markets in everything, though, right?

Shane M April 21, 2014 at 6:49 pm

Penalties are not small. Here’s a bill for $8000 for one image that negotiated down to $3000. This was from a website that uses lots of stock images and they had 1 that ended up not being properly licensed.
http://www.contentfac.com/copyright-infringement-penalties-are-scary/

Even if you buy directly from the photographer – are you sure he took the photo? How can you be sure you won’t get sued for infringement? For that matter – can you prove you took your own photo? Even if you fly to the Bahamas for that cool beach photo you need for your blog post, if someone disputed it, could you actually prove you took your own photo? I personally have put some of my own photos and sound effects in the creative commons CC0 to help folks with basic content needs, but it’s scary if you’re trying build a free content to use site, because one submitter deceptively posting images he/she doesn’t own rights to can foul up the community for everyone – and there’s no real protection for even making best efforts to not infringe.

Brock April 21, 2014 at 10:36 am

Bill clinton extended the duration of copyright law.And the far right calls him communist.

Johnnyz April 21, 2014 at 11:01 am

The Post Office lost the Piketty book I ordered so I haven’t read it yet. Does TP point out that Hollywood A-listers make what they do because of the copyright monopoly?

Boonton April 21, 2014 at 11:17 am

How does Scrooge McDuck swiming in gold coins illustrate that he gets more value from an additional marginal coin than a poor person? If anything I think it confirms the common view of diminishing utility of wealth. McDuck has so little use for an additional coin that he carelessly splashes them around. A poor person with just a few coins to their name will hold them so close to their bodies that they might as well be internal organs!

Perhaps McDuck’s preferred ‘leisure activity’ is making money and he would spend a ‘marginal hour’ of additional time making more money rather than recreation while many poorer people would rather use a day off to just relax. But I’m not seeing why McDuck doesn’t get less value from a marginal gold coin than those of us with smaller gold coin pools.

prior_approval April 21, 2014 at 11:21 am

An entire post about copyright, and not a single word about Creative Commons as a more than decade old attempt to address some of these problems. http://wiki.creativecommons.org/Frequently_Asked_Questions

But then, Lessig is not an economist, so instead of complaining about a system which rewards the person complaining, he actually did something about it.

Martin Keegan April 21, 2014 at 12:45 pm

an entire comment about Creative Commons, and not a single word about the fact that it can’t fix the generality of problems with copyright law.

prior_approval April 22, 2014 at 12:57 am

So, the link was too much for you? Here is an extract then – ‘CC licenses are copyright licenses, and depend on the existence of copyright to work. CC licenses are legal tools that creators and other rights holders can use to offer certain usage rights to the public, while reserving other rights. Those who want to make their work available to the public for limited kinds of uses while preserving their copyright may want to consider using CC licenses. Others who want to reserve all of their rights under copyright law should not use CC licenses.

That said, Creative Commons recognizes the need for change in copyright law, and many members of the Creative Commons community are active participants in the copyright reform movement. For more information, see our statement in support of copyright reform.’

Here is the link from the end of that text – http://creativecommons.org/about/reform – but just for you, an extract – ‘Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

We are dedicated stewards of our licenses and tools, and we educate users, institutions, and policymakers about the positive benefits of adopting CC licenses. Our licenses will always provide voluntary options for creators who wish to share their material on more open terms than current copyright systems allow. But the CC vision — universal access to research and education and full participation in culture — will not be realized through licensing alone.’

Of course, Creative Commons, like GNU, relies on copyright law – which is why it is somewhat beside the point to dismiss it with ‘it can’t fix the generality of problems with copyright law’ when the fundamental idea is to fix specific problems with copyright law.

Computer Scientist April 25, 2014 at 10:38 am

It’s just a single alternate approach (see GPL as well) – what’s with the bizarre fixation?

Bill April 21, 2014 at 11:27 am

No, not really.

“The opyright law is one of the forces behind the rise of the mega-bundlers. Mega-bundlers benefit from economies of scale in cataloging IP but there are also economies of scale in dealing with the legal system and insuring against/for lawsuit. ”

Quote then goes on to list the private bundlers, who enforce IP rights of their aggregated works.

But, it ignores: ASCAP and BMI, non-profit cooperatives owned by the composers and artists who have integrated forward into rights management and copyright protection.

Small composers have just as much access as Getty/Bill Gates.

They just form a cooperative to protect their rights and get a royalty stream back based on their efforts. Copyrighted, of course.

The Other Jim April 21, 2014 at 11:31 am

The absolute last thing you want to drink is “clean” mountain spring water. You will have diarrhea for days and wish you were dead.

Nothing is clean out there with animals running around pooping. Yay, nature.

Once again, industry saves the day.

Paul April 21, 2014 at 1:27 pm

Funny, and so true.

Mark Thorson April 22, 2014 at 6:02 pm

And you can’t sue mountains or animals.

Rob42 April 21, 2014 at 12:22 pm

It sure would be a lot easier if I could just use my neighbor’s lawnmower (when he’s not using it) to mow my lawn. Instead, property law means I have to purchase and maintain my own lawnmower or negotiate a deal with my neighbor. Property law is broken.

Derek April 21, 2014 at 1:02 pm

No. You buy your neighbors lawn mower and they have an almost eternal pecuniary interest in what you do with it. Once you sell it out isn’t yours any more.

anonymous April 22, 2014 at 9:41 am

If you’re comparing physical (rival) goods to intellectual (non-rival) goods, you should probably consider buying one of these fairly-priced econ textbooks.

Paul April 21, 2014 at 1:32 pm

Every time the publisher’s reps for Mankiw’s principles text come to my office I berate them for the crappy, ludicrous, insulting 30 year old ‘pictures of a typical family in Mexico/England..’ that he is too lazy to change. Maybe it isn’t just laziness after all….

Matthew April 21, 2014 at 1:35 pm

Your lawyers are right to be afraid of public domain images. Public domain is not the same as an MIT “open license”–derivative works can be and automatically are copyrighted. So, for example, while “Snow White” is literally in the public domain, “Snow White” as a movie title is copyrighted by Disney, and no other movie can use have those words in it’s title without permission from Disney. Simply arguing that an image is in the public domain is not a guaranteed defense of claims that your use of the image is copyright infringement.

J. Ott April 21, 2014 at 7:53 pm

Titles can’t be copyrighted. Disney’s “expression” of the public domain story of Snow White — for example, the names of dwarves (which were added in that version) or the way the characters were depicted — *are* protected by copyright.

Now, whether anything that was in popular culture circa 1937 should still be under the control of a company no longer employing a single person that had anything to do with it… that’s another story.

Rebecca Tushnet April 21, 2014 at 2:16 pm

While I hate to join a comments section full of such misleading claims about the relationship of trademark and privacy to copyright, my sympathy for authors dealing with risk-averse publishers impels me to point out that “bundlers” do not in fact provide legal certainty. And they aren’t going to indemnify you or your publisher, either. For a few examples of bundlers who at least allegedly sold image rights they didn’t have, leading to lawsuits, see Morel v. AFP (http://petapixel.com/2013/11/23/daniel-morel-awarded-1-2m-damages-law-suit-afp-getty-images/); Masck v. Sports Illustrated (http://blog.ericgoldman.org/archives/2013/02/heisman_pose_ph_1.htm); Resnick v. CCC (http://tushnet.blogspot.com/2006/04/another-reason-im-not-fond-of.html). Riskwise, you’d arguably be better off with Creative Commons or very old images. Authors who make fair use/alternatives to buying licenses an important point of their negotiations with publishers can often do better than adhering to the untested “rules” that stifle scholarship, and I think it’s good for the system when more authors do so.

Eric Rasmusen April 21, 2014 at 2:46 pm

Great point! A big part of the problem— as the post points out— is confusion over exactly what is safe to do, legally. The publishers think they’re safe if they use bundlers, but they’re not. That mistake makes it even more rational for them to be ultra-cautious, because it shows how even what seems to legal isn’t really any protection. They feel like they’re in a minefield, and if we tell them that even the stepping stones they thought were safe aren’t, that just confirms their caution.

Eric Rasmusen April 21, 2014 at 2:44 pm

Images and copyright hassle is a major reason why I’ve been thinking of self-publishing the regulation book I have in draft (http://www.rasmusen.org/regulation/). ME Sharpe is interested, but I’ll see if they really will take all the copyright work off my hands and keep those carefully chosen images!
A big question is why publishers are so cautious. What is the cost-benefit calculus of possible copyright violation? These images add very little to the value of the book, so statutory damages are the main threat. How well do courts keep to the law of imposing the exorbitant statutory damages?

Chris Newman April 21, 2014 at 2:51 pm

Since you wanted specialized photos to illustrate your intellectual points, I’m curious why you didn’t shoot some yourself. Then you don’t have to worry about clearance at all. If doing so would have cost you more than the transactions costs you incurred in order to use ones created by others, I’m not sure I see where the net welfare loss it. Was Scrooge McDuck really so important to get your point across that it would have been a hardship (or a loss to your readers) to use something else?

responsible D April 21, 2014 at 4:15 pm

Welcome to the IP thicket.

The stewards of the various systems (patent, copyright etc.) need to understand their mission to be not just ensuring meaningful IP protection for the right things, but equally importantly, vigilantly protecting and even growing the public domain.

Shane M April 21, 2014 at 6:20 pm

re: “For example, the publisher doesn’t like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.”

It’s really not even clear if you purchase a license to use the image from a stock site. Bottom line – there no way to insulate yourself legally. Somebody can deceptively post an image that they might not own on a pay stock site. You can purchase license to use it, but you will still have infringed if the image was deceptively posted. I often use my own lower quality photos because there’s probably less chance I’d be sued for using them. (In the end I wonder how I could even prove I took my own photos?).

The situation is not unlike patent trolls suing businesses over some supposedly infringing part inside a fax machine they bought at Wal-Mart. Just substitute “image” for “fax machine” and “iStockPhoto” (or any number of stock photo sites) for “Wal-Mart”.

Bill April 21, 2014 at 7:59 pm

I am reminded of the market for lemons when I read the problems some say that they had in purchasing from an aggregator, and their tail risks.

However, the person who indemnifies and warrants that they are the rights holder…that person should be able to license…at a higher price. If you introduce an indemnifying party with assets (Warren Buffet?)…you can be double secure.

In other words, this is market solvable, without destroying copyrights.

Shane M April 21, 2014 at 8:58 pm

Bill, my suggestion would be that the law should be made more lenient to those who make honest effort to not infringe, rather than require consumers to purchase insurance to protect against the law.

Bill April 21, 2014 at 9:32 pm

Intentional infringement carries a higher penalty.

If you are diligent, you won’t have a problem. The post is just conjecture and exaggerated stories…otherwise, you wouldn’t see anyone license intellectual property, would you. But you do.

mulp April 22, 2014 at 3:15 am

I’m old enough to have lived through the conservative economist’s call for using the market and property rights for everything because the public common just is so horrible at delivering things of value to society.

Hey, for economists who think private property and markets solve all problems to find private property and markets to be a problem is such a joy to people like me who thought the common is where lots more property should be held because markets can’t solve the big problems of society.

prior_approval April 22, 2014 at 4:08 am

I’m old enough to have written press releases detailing how GMU was on the forefront of the law and economics movement.

It was considered a joke then, but that was something only discussed in private among GMU PR employees (unlike tenured faculty members, we most definitely did not have the right to voice our opinions in a public setting). And to the later bemusement of some us, we never actually thought that anyone would ever take this any more seriously than we did. After all, it was associated with GMU, and not some institution that people actually respected. (Admittedly, PR employees did tend to have more information than faculty, much less people outside of GMU.)

Talk about the mistakes of youth.

Dave April 22, 2014 at 4:20 am

tl;dr: Alex wants to monetize other people’s work, and doesn’t want it to be hard, expensive or risky for him to do so.

Copyright isn’t patent. There’s no good reason you should have rights to use a picture of Scrooge McDuck. Draw your own picture of a duck swimming in money if you want to.

James April 22, 2014 at 6:56 am

Isn’t the author basically saying: “property rights are inconvenient for those who do not have them.” Isn’t this the way property rights are supposed to operate? Perhaps the system has gone too far, but knowing that requires knowledge of the benefits of copyright too, which is not discussed here.

App Dev April 23, 2014 at 7:35 am

Agreed with James

Carolyn E. Wright April 22, 2014 at 10:27 am

Why isn’t your brilliant text alone enough to sell your books? Don’t use my photos to enhance your book so that you can make money! Or take the photos yourself if you think it’s no big deal to make good photos.

Shane M April 22, 2014 at 5:26 pm

Carolyn, I don’t think folks are saying it’s no big deal to take good photos. I love the stock art sites, and think it’s great that folks can list their work there for sale. The original post particularly discussed problem of putting something in the public domain, and how you’re afraid to use it. I’ve put things in public domain myself. I do think it’s a problem when people are afraid to use assets that have been donated to the public because they’re afraid of getting sued.

Brad Neufeldt April 25, 2014 at 1:53 pm

In her blog post “Will No One Take on Disney?” @ https://fairduty.wordpress.com/2014/04/24/will-no-one-take-on-disney/ Mira Nair provides a good analysis of some of the flawed assumptions in Tabarrok’s post here concerning Fair Use. My response – if you don’t exercise your Fair Use rights you effectively erode them. If the publishers we work with are being timid/weak/cowardly with respect to exercising Fair Use, then maybe it’s time we ditched them for other options.

Andrew D. Todd April 25, 2014 at 2:43 pm

I think you are probably being a bit complicit in your own victim-hood. You have accepted the idea that a freshman textbook has to have a lot of pictures of no information content, or evidential value, pictures which you would not use if you were communicating with your peers, or even with people at a comparable level in another discipline. Effectively, you are allowing a typographer or a graphic designer to be the arbiter of whether or not you are an economist. Naturally, the publishers want to create a “mystery” of publishing textbooks, and departmental promotion policies create perverse incentives, undervaluing sets of notes put up on a website.

I went to my bookshelves pulling out a textbook of engineering thermodynamics, a textbook of differential equations, a textbook of college chemistry, a textbook of Laplace-Transform control theory, and a textbook of computer operating system design. None of these books seemed to have any “eye-candy” pictures. These books have diagrams, but they are the kind of diagrams the author regularly draws on the blackboard. For good measure, I pulled out a book which you may have heard of, Sensat and Linder’s _Anti-Samuelson_, in which two young Marxists attempted to “diss” the mighty Paul, on a line-by-line basis. No illustrations there, either.

If you do not use any illustrations which you cannot produce yourself, you will not have so much of a copyright clearance problem. You can of course maintain a file of your rough drafts, which you can show at need.

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