Pick the Right Protection for Your Intellectual Property

You've probably read dozens of those breathless "the future is now!" articles about digital media production — you know, "Today's accessible desktop tools have enabled artists and fans to share art in amounts and ways (legal and otherwise) that would have been inconceivable just a few short years ago."

Nothing wrong with that. But today we're going to go further, to show that sharing digital art does not have to be as black-and-white as many people think. There are a million beautiful shades of gray between sending a cease-and-desist letter to everyone who even views an artwork and submitting to international peer pressure to give all your art away to everyone, forever.

This article swims in those grays, arguing that you should pick the right place on the continuum for each project, rather than have an immovable blanket policy on all artistic dissemination, staunchly defending your camp in an "us and them" manner.

Squat and Deliver

When I was touring the squats of Europe in 2003 on a self-booked tour with my first film, D.I.Y. or DIE: How To Survive as an Independent Artist, I often got an interesting mix of feedback in the Q&A after each showing. The comments ran from "How did you put this together?" to "Would you accept a million Euros to make a film?" (Answer: "Yes, under my own terms.") But almost every showing also had some crusty anarchist punker with some variation of "Why did you put the copyright notice at the end of the film? Copyright is stealing."

The film in question had already come out in 2002 as a DVD called DIY or DIE: Burn This DVD, of which I allowed — and often encouraged — people to make personal copies. (This was before I'd ever heard of Creative Commons; it was my attempt at inventing a system like that.)

Mark Enger

Painter Mark Enger explains what's wrong with most art. (Still from D.I.Y or DIE.)

Yet I did consciously place a copyright notice at the end of the film. I like selling my art, and I like giving my art away. A copyright notice may not prevent people from making personal copies (nor did I care), but it might help if someone bootlegged the film, pressed 5,000 copies, and sold them. It also might have helped had someone inserted an ad for some company I hate and rebroadcast the film on TV. But it wouldn't help with everything, nor could I anticipate everything that might come up.

Pizza and Desire

I recall one evening in Lyon, France. The two guys who were putting on the screening took me out for pizza before the show. A few of their buddies tagged along. At dinner, one said to me, "I have seen your film, and loved it. I would love to put this on the Internet for free, if you will allow me."

I replied, "Let me think about that for a few minutes," and chewed my food. Conversation lulled around the table. Everyone was basically waiting for my answer. I quickly weighed the pros and cons, finished a slice, and finally said, "Yes, that's okay with me. Just let me know when and where and please e-mail me a link." (He never did e-mail me the link, though he did post my film.)

Then I paused, thought some more, and asked him, "What would you have done if I'd told you I did not want you putting my film on the Internet?" Without any hesitation he replied, "I would have put it on the Internet anyway, because this documentary is too important to not share. This film is more important than you as the auteur, and more important than your desires."

You gotta love the French. But I was flattered: in some sense, making a debut film that people are willing to defy you in order to propagate is hitting the ball out of the park on the first try. But in another way, I was taken aback, and so were a couple of my dinner companions. This quickly evolved into a debate, two of the guys arguing that this fellow was right, and two arguing that I had a right to choose when and where to give away my art. I stayed out of it, and listened to them go back and forth in English and French. I finished my meal, and we walked back to two smoke-filled showings of my film.

Dino Pope

Gwar feeds the Pope to a dinosaur in this still from D.I.Y or DIE.

Scorn for Copyright Law

There is a great movement afoot in the world to reform or even destroy (or at least ignore) copyright law entirely. It is largely propagated by three camps. First are people who can't seem to make a living selling their content, so they are left with giving their stuff away and therefore think everyone else should, too. Second are people who do not create any content, or have a hacker/communist ethic that everything should be free and that property is theft (like the squatters who called me out for putting a copyright notice in my own movie). And last, and perhaps most vocal, are writers who make a living writing about other people's content. This includes many high-profile bloggers, and also people who run directories or somehow make their living linking other people's content.

I absolutely agree with three basic bullet points of all three camps. First, technology has changed faster than copyright law and the whole system needs some overhauling. Next, I agree that the huge brick-and-mortar international conglomerates that make their living by owning content created by others are headed the way of the mammoth in the tar pits, and new models are going to replace them. And finally, I agree that just because the piggy copyright banks of the old economy were on top for the past 90 years doesn't mean they are guaranteed the right to continue, unless they change and keep earning their place.

But there are two places I disagree strongly with the three camps described above: I do not believe that property is theft. And I do not believe in a "one size fits all" solution for content creators who administer their own intellectual property.

Creative Common Sense

The most famous alternative approach to copyright is Creative Commons (cc), a new way of putting varying types of protection on work you create. There are six different levels of "licenses," it's free, and anyone can do it. In fact, many people are. Creative Commons can vary from practically giving everything away to the public domain to giving your art away but allowing people to make derivative works provided you get credit and the derivative work itself is released as Creative Commons. However, no matter which license you pick, you are allowing people to make copies of your work for free.

Some people claim to be making a living doing this. Some people release their books, music, and films for free as electronic downloads (of the complete work, not just a sample), but also sell hard copies (printed books, CDs, and DVDs). But most people who claim to make a living doing this are really making the bulk of their money doing something else, such as consulting, lecturing, or teaching. (Also, an inordinate number of them seem to do UNIX programming or UNIX network administration.)

Some of the people who say they make their living with this free-and-paid model are also the people who shout, "Copyright is theft!" the loudest. And many of them really make most of their money commenting on other people's content (in print or on high-traffic ad-supported blogs).

Killian MacGeraghty

Killian MacGeraghty of the Gun and Doll Show hangs out in his band van, where he may or may not have been living when this movie interview took place.

Pundits, Intellectuals, and Dumpster Divers

I've done practically everything you can do as far as different levels of copyright/copyleft and free-vs.-pay schemes for music, books, and film. I've been signed to Warner Brothers. I've been signed to indie record labels. I've put out vinyl records myself on my own label. I've released a film as a DVD with no region encoding, no copy protection, and subtitles in five languages on one disc. (Commercial DVD releases would never allow any of that, as it makes it harder to pre-sell different parts of the world.)

Sheffield Audience

A pub audience in Sheffield, England, about to watch the film.

I've written books on an advance, sold the copyright to the publisher, and received continuing quarterly royalties for the books. I've self-published a book and sold copies out of the trunk of my car. I've given away a book for free on the Internet, with the Quark source files free for download under Creative Commons so anyone can translate or "remix" the book, and still got paid to write the book. I currently do two weekly podcasts that I give away for free, and I am not seeking advertisers for them. (As I like to say, I'm maintaining my amateur status so I can compete in the Olympics.)

And in each case, with every project and every medium mentioned above, putting the project out exactly as I did was exactly the right thing to do, for that particular project.

What I'm saying is this: I believe in a free-flowing global exchange of information. I believe free flow is important to continue advancements in art, science, and commerce. And I believe in Fair Use. But I also am not a communist, and I enjoy getting paid for something I work very hard on. I think the artist (or content creator, if you like) will do well to learn what all the various options are, all the different levels of copyright, copyleft, free, and pay, and adjust accordingly on a project-by-project basis.

Don't believe the pundits, intellectuals, or dumpster-diving squatters who tell you that any one way is the right way or the wrong way. Don't let anyone guilt you into doing anything you don't want to do with your art. Your art is your baby. Respect it, love it, cherish it, but don't devalue it just because "everyone's doing it."

Art belongs to the ages, but it primarily belongs to the artist. To you. You are free to do with your art as you please. And that's true anarchy.

DIY DVD Cover

The little film that could.

Case Study: D.I.Y. OR DIE

I've done many projects in my life, including music, books, podcasts, and films, but the one that's gotten the most word-of-mouth attention was the film D.I.Y. OR DIE: How To Survive as an Independent Artist .

You can watch the trailer here:

The entire film went up on YouTube this month as well, split into chapters:

"D.I.Y." stands for "Do It Yourself." Fittingly, not only is the film about D.I.Y., it was made and promoted in a very D.I.Y. manner.

D.I.Y or DIE sold only about 5,000 copies on DVD, but there are a lot more copies out there in the world, because I released it with no region encoding, no copy protection, and no restriction on making personal copies.

I did make it clear: if you make commercial copies and sell them for profit, I'll come after you, lawyers blazin'. But you're free to make up to ten copies and give them away, or sell them for a dollar (the price of a blank DVD and what I figure is the value of the time to burn a copy). And anyone who receives a copy is free, in turn, to make their own ten non-commercial copies. And so on.

I even sold burned copies of my film after it was already licensed to an independent distributor, and the distributor didn't care, because the attention and press we got from releasing it with the "burn ten copies" model sold more copies. I also made more money from sales on the road, and didn't have to bring a lot of copies with me. I burned more as needed at people's houses along the way.

Burned DVDs in German

Burned copies of my film at a café showing in Germany. Yup — I bootlegged my own film.

I've done other projects that sold many more copies, and I've done projects that made more money, but this one really hit a chord with a lot of people. It's more of a short (55 minute), portable mission statement than a standard documentary. The movie examines the motivations of artists — starving and famous — and explains, in their own words, why they do what they do, regardless of a paycheck.

Foetus Van Gogh

The inventor of industrial music, Foetus, looking much like Vincent Van Gogh. (Still from D.I.Y or DIE.)

The D.I.Y. Ethic

I didn't decide to be a filmmaker and then make D.I.Y or DIE. I taught myself filmmaking because I wanted to make this film. I needed to make this film. It needed to exist. If another documentary that expressed the same idea had already existed, I wouldn't have bothered.

I made the film by hook or by crook. I ran up credit cards. I flew, took busses, and rode bicycles to interviews. When I couldn't get to a city to interview someone, I e-mailed them the questions and either had them interview and film themselves and send me the tape, or I had a friend in their town do it. I wrote an article called "MAKE a Mailbox Movie" for Make magazine detailing the process.

Richard Kern

Filmmaker and photographer Richard Kern interviewing himself for the movie.

The other reason D.I.Y or DIE was such a success (and I measure the success of something by the effect it has on people, not on units shipped) is that I got out there and took it to the people. I did three US tours and one of Europe, personally working 77 cities; did Q&A after; and planted seeds of copies everywhere for people to copy. You can see all my photos of my European tour, as well as my tour diary, here.

I made it easy for people to book the film by putting the trailer, one-sheet description, flyer, promo stills, and downloadable contract on the film's site.

French Flyer

Flyer for D.I.Y or DIE in France.

I left for all the tours hoping to break even, and actually made money on all of them. It was great. A paid vacation, spreading an important message, and I had the time of my life. And six years after the film was completed, I still get checks in the mail for sales and showings every month.

Goodwill Ambassadors

People still e-mail me from all over the world and ask if they can show D.I.Y or DIE in their country. Sometimes they show it even without asking, and I find out from a Google Alert. I'm fine with that. I made the film to reach people, not to make money. So if someone helps it reach people, they're doing my work for me.

I'm a cat lover, and allow and encourage anyone anywhere to screen the film as a benefit showing to raise money for their local animal shelter or rescue. (I only ask that they buy one copy to do so.) I'm able to approve things like this without the authorization of partners, producers, co-owners or investors, because there are none.

When you do it yourself, you may end up not shipping millions of "units," but you also don't have to appeal to anyone else to do whatever you want with your art. And if you make something that people want, that people need, they're willing to step up and help you get it out there.

If I'd sold D.I.Y or DIE to a major media corporation, I wouldn't have had the freedom to tour with it at will without asking permission. I would never have gotten away with releasing it without copy protection. And I could have gone to jail for bootlegging my own film, because once you sell something, it is no longer your own.

Disarm America

A window sign in England.

Selling Out vs. Cashing In

After I posted the whole movie on YouTube, I posted a bulletin about it on the Yahoo Podcasters' Forum. This wasn't "drive-by spam"; it was a notice to my friends on a group where I'm a long-running regular.

What happened next is a testimonial to the potential of D.I.Y. promotion. Another regular on the board had recently been hired by Microsoft. He was the podcast acquisition coordinator for the upcoming launch of the Zune Marketplace (Microsoft's equivalent of the iTunes Store) and Zune.net. He contacted me off-board, said he'd checked out the movie, and asked if I'd like to make it a high-quality download as an episodic video podcast on ZM and Zune.net? He said he'd make it one of the top-four featured video podcasts. I immediately said Yes.

No money was exchanged. Microsoft got content, and I got hits — many, many terabytes of downloads (with unlimited throughput hosted on Libsyn).

I see no problem dealing with Microsoft. It's no violation of the imaginary "punk code" to me, though I got a few snitty e-mails implying that it was. Anyone making any new media is using tools — at least hardware — made by major corporations. When was the last time you saw some punker running Linux on a laptop with integrated circuits burned in his own sterile laboratory? Can't be done.

But even people who didn't think I'd sold out my punk ethic wondered about my reasons for putting the whole movie on Zune in near-DVD quality (30fps, 900kbps MP4 files at 640x480-pixel resolution with 128kbps stereo audio) and no digital rights management or copy protection when the DVD version is still selling.

I have a lot of reasons, but here's a good one:

Since all media has more or less become free (or at least free to people willing to just take it), I've discovered that the easiest way to make a living is to work on making my name into the commodity.

I never turn down an interview, I answer all e-mails from people who check out my stuff, and I give art away. A lot. The point is not to generate money, but to generate more "ink," more of me on the Internet, the press, podcasts, radio, TV, etc. As of this writing, Google listed 13,500 hits for the title of the movie — more than the number of DVDs sold. My name, "Michael W. Dean," generated 33,000 hits.

I am art

Me in front of graffiti in Dublin. This phrase is my personal motto. Apparently it's someone else's personal motto, too.

Frequent positive attention on the Internet increases your value as a "name," making it easier to get quick-money side gigs, lecture work, book deals, consulting work, and other opportunities. Also, when you do a project and go to sell it, having your name out there means the media middlemen, as well as the consumers, are more likely to say, "Oh yeah, I've heard of that (director/photographer/musician/writer)."

I keep my soul happy by making art. But I make my living mostly from explaining my production and distribution processes to other people who have similar goals — people who want to produce quality art and get it out into the world. I didn't make DIY or DIE to make money, though the Zune feature, and the resulting press, may well help sell DVDs. More important, the massive downloads from the Zune feature will help spread the message of the film. For a digital artist and for audiences worldwide, it's a win-win situation.



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