I was just commenting on Vince’s last article Copyright or the Right-to-Eat and realized that my comment was getting so long that I should better write an article on the subject. This actually funny because I was about to write a piece on exactly the same subject, and for most of it with the same opinion, because I attended on Friday a conference called “New Media Artists and The Law” organized by California Lawyers for the Arts and I wanted to share the thoughts of this conference on this blog. It gathered Emily A. Berger, Intellectual Property Fellow with Electronic Frontier Foundation, Mike Linksvayer, Vice President of Creative Commons, and Joel Slayton, Director of the CADRE Laboratory for New Media, and exploring the ways copyright laws are implicated in new media art and the challenges artists face in this evolving area of the law.

In direct connection with Vince’s article, Mike Linksvayer, VP of Creative Commons defended the idea that there are plenty of ways to make a living while giving one’s art for free. But I had the same issue as Vince’s about the status of the artist in our society: what does this reveal if people are not willing to pay for art anymore? I personally believe that the Internet and the culture of gratuity and open access is an opportunity for unknown artists because giving their art away for free allows them to get some market traction and then, be able to sell some “derivatives” of their art, and make money that they wouldn’t have made without this strategy. So for this specific kind of people, I would say that it shouldn’t be an ethical problem to make money on things that are not the product of their art itself, because the product of their art itself wouldn’t have generated any money otherwise. But of course there is the other portion, which can have an opportunity of making money from its art directly, but which will start feeling a certain pressure to give this art for free. I was kind of shocked during this conference to hear artists in the audience speaking about offering their art on the Internet as a fatality, a trend they were obliged to follow, as if the “Myspace success story” was the only hope left. But as Emily A. Berger mentioned during the conference, referring to Chris Anderson’s article “Free”, you will always have free to compete with you: so either you try to make it better than what is offered for free, or you try to tackle the niche of people having more money than time (the iTunes niche, which, with the right pricing, is actually not a niche anymore), or you make it free and find ways to make money otherwise.  An excellent article from Kevin Kelly called “1000 True Fans” argues that an artist only needs 1000 True Fans to make a decent living, since a True Fan, that you can “recruit” via the free offering, will after that be ready to pay for anything related to you. And he also mentions that the Internet allows you to reach this number more easily than traditional channels and therefore find a middle way between the long tail and the superstar.

But while all this talk is perfectly understandable in the case of the music industry which is a market based on volume, it is a totally different story when it comes to visual arts. Which is why I have trouble understanding a copyright law which seems to tackle all the artists as if they were a unified world facing the same challenges. And this is also why I welcome initiatives like Creative Commons which allows people to give away some of their rights when they feel that the copyright law doesn’t answer their needs and that these new licenses can benefit them, as long as (and this is a major risk) it doesn’t put any pressure on other people in the industry to do the same. But how do you adapt these notions of derivatives in the case of visual arts? It is way harder for a painter to get True Fans, and even if he manages to get some, I am not convinced at all that a person falling in love with the image of a painting will be ready to buy a T-shirt with this same image: it is just not the same feeling. The visual art market has somewhat been already confronted to the same kind of problem outside the Internet, like how to monetize a happening or short-lived works of art. When Christo decided to wrap the Reichstag in Berlin and the Pont Neuf bridge in Paris, he had to find ways of monetizing a work of art that was offered for free to the inhabitants of these cities, and therefore he sold some pictures of the different stages of the experiment. But, to go back to Vince’s point, this is Christo, and a lot of people are interested in those pictures, whereas an unknown visual artist doesn’t have the traction.

Actually, the major paradox is that only artists who would manage to sell their art directly are able to sell derivatives in a significant amount, whereas the starving artists who would be ready to give their art for free and make a living by selling derivatives don’t have the market traction to generate enough interest around their derivatives, especially in visual arts. And after all, even if Emily A. Gerber said “get your art out there by any means, get market traction and after that you’ll see”, a thousand fans is a pretty large number don’t you think?

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