Rhea Myers

“The problems with free-licensing aesthetic works”

Terry Hancock has an excellent series of articles in [Free Software Magazine](http://www.freesoftwaremagazine.com/)'' called Making the impossible happen: the rules of free culture’’ that examines the production of Free Culture in great detail. Go and read them all then come back here.

The third in the series concerns Creative Commons (CC) licenced art. Terry makes some good points regarding the non-fungibility of art and the relative adoption rates of CC licences. He also raises some possible philosophical, economic and ethical objections that people might make to the use of CC licences for art. Because this is an area of great interest to me I’m going to provide some further possible responses to those possible objections here.

Works, when valued aesthetically, are never interchangeable'' and Beauty is in the eye of the beholder’’

These are good things, as they are the key to the economic value of Free Culture artworks.

Aesthetic works are not substitutable and cannot be functionally equivalent because what they are is what they do. Even allographic works can have different performances or editions. Fans can never have too many bootlegs or remixes or special editions. A t-shirt is a complement to a gig, not a replacement for it. A work by me is not substitutable for a work by you, people can buy both.

Being a performer in a new genre or an artist in a new style is the aesthetic equivalent of being a Java hacker in 1997 or a Rails hacker in 2007. You have differentiated yourself from people who have only commodified skills. You have a scarce and saleable skill that you can charge extra for. And the desirability of that skill is a matter of perception whether we are talking Java, Ruby, sounding like Coldplay or being a Relational Artist.

``It’s pretty hard to sell a service contract on a painting or a music track’’

The services and documentation model that was proposed for Free Software in the 1990s might not seem relevant to a rock band or a fine artist. But in fact this model closely parallels the way that most artists actually make a living (we’ll ignore bar work and manual labour here).

Fine artists make some money from selling paintings and sculptures. They usually make more from private and public commissions, residencies, teaching, workshops, exhibition fees, print editions, conference fees, design work, and writing for reviews or academic works. This is the hard, unglamorous work of building your reputation so you can charge more for your labour and its products. And it is service and support work.

Musicians, playwrights and authors have a similarly disparate set of revenue streams. Where the money comes from changes over the course of your career, but it is never just from making art and giving it to your dealer or agent. Or from having someone charge for reproductions of recordings of the products of your labour.

A song or a painting can lead to demand for services (such as performances or readings), to commissions for new work, to opportunities to remake the work for a new context, and to demand for compliemtary products. Just like free software. Keep the master tapes or the preparatory sketches (it’s the aesthetic equivalent of owning the server) and you can manage the lifecycle of individual instances of artworks and make money by satisfying changing demand for them. Just like free software.
``Some artists may not appreciate seeing their work “improved” by others’’**

Tough. That’s how art progresses. If previous artists didn’t like you improving on their work you wouldn’t be able to be an artist. And the CC licences make very clear that they do not affect moral rights. This maintains artists’ ability to object to false attribution or defamatory mistreatment of their work even within Free Culture.

Terry’s example of a doodle on the Mona Lisa has an important historical precedent, Marcel Duchamp’s Dada collage ``L.H.O.O.Q.’’ of 1919. This was not only disrespectful to Leonardo’s famous painting, it was obscene by the standards of the day. Yet it is an important work in Duchamp’s ouvre and therefore in Modernist art. The thought of copyright or moral rights being used to suppress it shows precisely why Copyleft for cultural works (or at the very least Transformative Fair Use) is so important in the face of ever extending censorship through law and technology.