Photographer Learns To Embrace The Public Domain... And Is Better Off For It

from the it's-a-fucking-lighthouse dept

There are constant debates over the value of the public domain. As you know, in the US, Congress has repeatedly expanded and extended copyright law to effectively wipe out the public domain. No new works have gone into the public domain because of copyright law (other than works by the Federal government) in many years, and that likely won't change for many years either. The only way works go into the public domain these days are through some sort of public dedication, such as by using the Creative Commons CC0 license -- though very careful lawyers may remind you that even this is not technically putting the work in the public domain. Under the current Copyright Act there really isn't a way to officially put something in the public domain. A copyright holder can only make an effective promise that the work should be treated as if it's in the public domain by declaring it so.

The fact that the law is so hostile to the public domain is no accident. If you look at the history of the debates about copyright shows the legacy copyright industries being actively hostile to the public domain, and making a variety of silly, nonsensical (and flat out wrong) arguments about the public domain. They've argued that putting works in the public domain removes all value from the work. They've also claimed that putting works in the public domain will cause it to be over-utilized, since it's free, thereby harming its value in a different way. The fact that these two arguments seem to conflict with each other was more or less ignored. And then you even have the extremely ridiculous claims that the public domain is theft of private property. Paul Heald has done some tremendous research on how all of the hyperbolic statements about how awful the public domain is simply aren't true. But that's looking at historical data.

It appears that some content creators are realizing the value of the public domain as well. A Swiss photographer, Samuel Zeller has written an absolutely brilliant piece on how much value he's received by putting many of his works into the public domain via CC0 licenses (he also uses CC-BY licenses on many of his other photos). Zeller focuses on a wonderful tool that I've made use of many times myself over the years: Unsplash, which is an absolutely amazing community of photographers all sharing their brilliant photos (in high res) under CC0 public domain dedications (as an aside, if you sign up for it, Unsplash will send you a regular email every week to 10 days showing a selection of their latest photos, and they tend to be stunning). Zeller explains his own discovery of Unsplash:
About two years ago I stumbled on Unsplash, a website with free (do whatever you want) high resolution photos. I love the concept instantly, people could just upload their images and give them away for free under a Creative Commons CC0 license.

So Far, I uploaded 184 images on my Unsplash profile, they've been viewed over 63,000,000 times and downloaded over 613,000 times.

Just insane numbers.
And from that, good things result:
The amount of traffic Unsplash generate to my portfolio is huge. The number of referrers I have is constantly growing, many websites and blogs use my images and give a link back. My website is no longer just a small island in the sea that nobody see, it's a fucking lighthouse...

My latest and biggest client found me because of Unsplash, in fact I never really searched for clients, they found me in the first place. (isn't that what every photographer dream of?)
From there, Zeller addresses the common myths around why you shouldn't give your work away for free. First up, by giving away his photographs this way, is he losing money?
It is a a matter of perspective. If I put all my images on a stock photography website I could make some money out of it.

But stock photography is dying, people pay less and less for images. I know, I worked for years in a design agency where we regularly had to buy images for clients, and our clients budgets were always getting smaller.

Why should I need to sell images if I have clients paying me to shoot specific images? To me working for a client face to face is rewarding, way more than making money on digital sales to people I will never interact with.
This goes back to a point we've been making for years: your past work acts as an advertisement for your ability to be hired for future work. And if you give that work away for free, it acts as free advertising. Zeller seems to have discovered that to a fairly extreme level.

On to the next myth: giving away your work means that it somehow "loses value."
This is something people asked me before and the answer is: no.

My photography keep improving, more people stumble on my work and I've got more contacts, more projects and clients than before.

An image has value because someone has an use for it. It has absolutely no value if it's sitting uselessly in my hard-drive or if it's just on social media waiting to get liked. Sure it has emotional vlaue but don't get me wrong, I need money to live and pay the bills.

the images I give away for free are like a teaser of what I can do. Think of it as a "try before you buy" option.
Later he notes:
There's no point in being talented if nobody can see what you do.
Now you can make a totally reasonable argument that Zeller's situation doesn't necessarily apply to everyone. There is a combination of both skill and luck in getting your work so widely recognized. If you're just not that good, it's going to make things that much more difficult. And even if you're good, sometimes you just don't get seen anyway, but that's got nothing to do with copyright. Freeing up images certainly increases the opportunity that people will discover your work. If luck is the issue, freeing up images is like giving luck many more chances.

The other argument, obviously, is that photography is different than other creative works -- and that's absolutely true. However, I will note that independent photographers historically have often been the most aggressive and vocal about wanting stronger and stronger copyright protections and being against relatively modest improvements to copyright law. Many have become so focused on licensing images they've taken in the past that they haven't even considered alternatives or how freeing up images and how that might help.

Anyway Zeller's photographs are pretty damn awesome. Check out his Unsplash page and his larger archive of photos as well. Here's one of his many cool photos, because I feel like we shouldn't write a whole post about him without including at least one image:

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  • identicon
    Anonymous Coward, 5 Aug 2016 @ 11:38am

    "Isn't a way" to put in public domain

    Mike, there's a comment on the previous post about the 9th circuit that I didn't see fully explored. "It is well settled that rights gained under the Copyright Act may be abandoned". And 17 U.S.C. §§203,304 only discuss the termination of grants, transfers, and licenses of copyrighted works. Why do you think an abandoned copyright can be "un-abandoned"? I see no evidence that abandonment would be treated like a license; if it makes the work public domain, termination isn't possible because, by definition, the right only applies to copyrighted works. (Of course, that may not help in other jurisdictions)

    reply to this | link to this | view in chronology ]

    • identicon
      Agena, 6 Aug 2016 @ 10:27am

      Re: "Isn't a way" to put in public domain

      Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960) was decided in 1960 and is outdated.

      The Copyright Act of 1976 makes copyright automatic and supersedes previous United States copyright laws, including common law. It does not include an "abandonment" clause.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 5 Aug 2016 @ 11:41am

    hAND IN HAND

    This has to go in the same problem with recent Trade agreements..
    The BIGGEST problem here is OTHER countries agreeing to it.
    Its not a Company suing a company, and debating WHO had the idea first. Its Corps suing States, and countries..

    Then comes the idea of a small country TRYING to defend itself, over something that created Long ago, and a Company suing them because they want it/Think they created it.

    Then the Idea that you created something Long ago, then updated the design over time, because of New tech that made things easier...from resisters to chips.

    How much money would you save on a CAR, if all the CP parts were in the public domain? HOw much would you save on cellphones if the 300 CP Dropped???(yes there are over 300 Copy right claims on Every cellphone..from Chips to Design to Programming...)

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 5 Aug 2016 @ 11:52am

      Re: hAND IN HAND

      Public intellectual property pools. If you could pay based on fixed, calculable fees to get access to whatever patent is in that pool for instance we'd see an explosion in innovation for sure while still giving a nod to the creators. Of course the patent acceptance mechanisms would need to be much better. Imagine if some fans could secure a cheap license to create upon existing works under copyright without fears...

      The possibilities are endless.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 5 Aug 2016 @ 12:22pm

        Re: Re: hAND IN HAND

        tHERE IS kinda BACKDOOR IN THIS SYSTEM..

        Its that you can BUILD anything personally...
        The problem comes in 2 forms..
        1. Is a CHIP protected if you create something with it?
        2/ Do you think buying a few chips at RETAIL is cheap?

        ITS getting Bad enough...
        that if you create something with 1 format, and the DESIGN/SHAPE/FUNCTION/.. was copy written, Under another format..
        Lets say Pudding..
        You make it by Beating it with a spoon..but the CP has it beaten by a Mechanical beater.. YOU will be Sued..by the Corp, to disprove the allegation..and then it will be found that Either method is CP..

        reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 5 Aug 2016 @ 11:48am

    A creators worst fear should not be the inability of monetizing his creation. It must be obscurity. If your work isn't seen then chances are you will not monetize on it. And by work I mean your ability, not what you already produced.

    Heck, if I had a whole freaking lot of money I would patronize so many things I currently can only support via tickets and small donations...

    reply to this | link to this | view in chronology ]

  • identicon
    David, 5 Aug 2016 @ 11:59am

    And now even more viewers

    After this article comes out, there's going to be another bump in traffic and even more people that know of him. Yet more free advertising. Bonus!

    reply to this | link to this | view in chronology ]

  • icon
    One Tom too Many (profile), 5 Aug 2016 @ 1:26pm

    Awesome!

    Amidst all the ridiculosity of the news I love reading good news and people doing good things like this! Thanks for this resource too! Look forward to using and sharing with them!

    reply to this | link to this | view in chronology ]

    • identicon
      dar, 6 Aug 2016 @ 2:00pm

      Re: Awesome!

      As well,open source rules...https://www.youtube.com/watch?v=SGJ5cZnoodY
      1:07:50
      Shenzhen: The Silicon Valley of Hardware
      (Full Documentary) | Future Cities | WIRED
      WIRED UK


      http://topdocumentaryfilms.com/shenzhen-silicon-valley-hardware/
      ...At the very start
      the film sets the scene to this fascinating technology mecca.
      A city populated by 20 million people,
      Shenzhen is the setting where advancement
      is most likely to originate
      at speeds that can't be replicated in the States.

      The city's vibrant and inventive tech work force
      takes over when the innovations of Silicon Valley become stagnant.
      The revolution may have started in the States,
      but its evolution is occurring in China.

      Working in collaboration, Shenzhen laborers craft unique upgrades
      and modifications to everything from laptops to cell phones.
      Their efforts
      then immigrate and influence
      the adoption of new products in other regions of the world.

      The infrastructure by which this is made possible
      is known as the 'Maker movement'.

      In developer conferences and Maker exhibition fairs,
      tech geeks are encouraged
      to share their ideas freely with colleagues
      in the hopes
      that more open collaborations will form grander innovations.

      The film highlights how these attitudes
      stand in sharp contrast to the Western world
      where communications are secretive,
      monopolies are the norm
      and proprietorship is sacred...

      reply to this | link to this | view in chronology ]

  • identicon
    Hans, 5 Aug 2016 @ 2:17pm

    Thanks Mike

    Most of these copyright/patent/trademark posts seem to end up making me feel quite cynical. I think perhaps the way this was written left me feeling good.

    Thanks Mike. I hope Zeller makes even more.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Aug 2016 @ 8:22pm

    Excellent step, what to do about books?

    First, he had made a wonderful step, and I do like his pictures. Of course his clientele will only be local (or clients for whom he can take pictures of local things).

    This approach cannot work for book authors - a client won't pay for a year or two of labour to produce a book and not not want to on-sell it - and I've yet to think of a 'copyleft' way of making a living from writing books. It just takes so long to write them. I suppose once one had a large readership (via several free books and many years of unpaid work), one could ask for donations. That doesn't sound very attractive.

    Yes, a photographer or a musician will take many years to develop their art, but this development is also required of authors; I'm referring to the time an author requires once they have reached the point of producing quality work. And, yes, some writers do crank out books in weeks, write formulaic content - I will mention don't bother with an editor - I'm referring to recompense for a 'serious' authors' work.

    I'm aware of Cory Doctorow - he has used a mix of free and paid-for books. This approach (amongst his other activities) apparently works for him, but it is not "the economics of free".

    Does anyone have any examples of authors who are making a living by not charging for their books? Or any ideas? Perhaps I'm being a bit too prescriptive in this scenario...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Aug 2016 @ 1:40am

      Re: Excellent step, what to do about books?

      Does anyone have any examples of authors who are making a living by not charging for their books?

      You are looking at it from the wrongs angle, but selling physical books while giving away free digital books is one approach, another is to use a patronage/donation model. Look around YouTube and see how people are making a living by using it. Although it really comes down creating a core fan base and connecting with them.
      It is also worth mentioning that the usual advice to authors is to keep the day job.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Aug 2016 @ 2:18pm

      Re: Excellent step, what to do about books?

      A variation for an author could be to give away short stories, letting people find out about them and the kinds of things they write that way, and sell the full length books.

      People might be wary of dropping $4-8 or more on a book from an unknown author, but if they've already read several shorter pieces from them to get a feel for the kinds of stories they write and their skills they're likely to be much more willing to buy the full books.

      As an added benefit short stories are much easier and quicker to write, meaning it wouldn't take much for the author to create the 'sample' stories.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 8 Aug 2016 @ 6:54am

        Re: Re: Excellent step, what to do about books?

        "A variation for an author could be to give away short stories, letting people find out about them and the kinds of things they write that way, and sell the full length books."

        This used to be common practice. It was common, even, to take sections of the full-length books and rewrite them as short stories for publication in newspapers and magazines as a kind of advertising for the book.

        I still see it fairly often, except that the short stories are written on websites.

        reply to this | link to this | view in chronology ]

  • identicon
    DOlz, 6 Aug 2016 @ 4:50am

    Refuted in two words.

    "They've argued that putting works in the public domain removes all value from the work. They've also claimed that putting works in the public domain will cause it to be over-utilized, since it's free, thereby harming its value in a different way.”

    William Shakespeare

    reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 6 Aug 2016 @ 3:04pm

    A cataloging suggestion

    I have a cataloging suggestion: Put this in "Case Studies". That section hasn't been updated since last year!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2016 @ 8:07pm

    Oh, boy. Whatever isn't going to like this at all.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 7 Aug 2016 @ 11:11pm

    Sort of a dumb story, because it's playing against a straw man:

    "everyone says the public domain is bad".

    The problem is quite simple: For someone who is relatively unknown, or has only a small local following, there are certain advantages to licensing your work for free (see, he doesn't use the public domain, but a very unrestricted license, the work is still copyright). Any exposure when you are unknown is good exposure.

    Now, you can also be entirely certainly that not all of his work is in the "public domain". Just like free samples out front of the cookie store, he's not giving away bags of cookies just for fun - he's marketing and promoting his brand.

    Would it work for everyone? Well, here's the rub: if too many people are giving away "free food", then consumers will just walk around enjoying all the freebies and won't buy any more. If a free sample is too generous, or there are too many of them, then the promotional effects may be outweighed by the erosion of the marketplace.

    So except for a whole lot of straw on the ground from mowing down yet another strawman, the article accomplishes very little because it doesn't consider the wider implications or how this would work if more people were doing it.

    (oh, and this comment delayed 24 hours be the Techdirt board of Censorship)

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 8 Aug 2016 @ 2:49pm

      Re:

      There already exists more songs that could ever be listened to in a lifetime, more books that could be read and pictures and videos that could be viewed, for free with the only 'payment' finding it. And yet despite this people still continue to pay for music, they continue to pay for books, videos and artwork.

      'Free' is already an option in all those fields and yet people still chose to pay, so saying that giving away some pieces means people won't buy others is already wrong and/or an indicator that the one trying to sell their work needs to do something different to make their stuff stand out and give people a reason to pay.

      (oh, and this comment delayed 24 hours be the Techdirt board of Censorship)

      You realize that people are able to see when you posted right, in particular the fact that your 'censorship' lasted(as of this post) 15 hours at most, most of that taking place in the wee hours of monday morning when most people could safely be expected to be asleep or waking up. I mean it's nice that you apparently have nothing to do that requires sleep and enables you to check something 24/7, but I'm afraid to tell you others aren't usually so blessed.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 8 Aug 2016 @ 10:45pm

        Re: Re:

        "ou realize that people are able to see when you posted right, in particular the fact that your 'censorship' lasted(as of this post) 15 hours at most, most of that taking place in the wee hours of monday morning when most people could safely be expected to be asleep or waking up. I mean it's nice that you apparently have nothing to do that requires sleep and enables you to check something 24/7, but I'm afraid to tell you others aren't usually so blessed."

        You miss the point. Delaying the posts BECAUSE they come from me is a form of censorship - 1 minute, 1 hour, 1 day... doesn't matter. Techdirt treats my comments differently because it's me. Are your posts delayed? Nope. I am censored, you are not.

        Perhaps you would want to address the real question, why are my posts censored and "moderated"? Is that truly a great example of free speech on a site that hangs almost everything on the 1st amendment?

        People do pay for music, this is true - however, there are now huge sources of music where the consumer does not pay (either purchase, subcription, or advertising that in part pays to the artists / creator / rights holders) and that is very different from 20 or 30 years ago. Yes, an artist has to work to stand out, but then again, if every artist is doing the same thing to stand out, will anyone really stand out? If enough photographers use the public domain as an ad tool, at what point do they cannibalize the actual market for photographs? Even free has a cost in how it changes the market place.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 9 Aug 2016 @ 12:43pm

          Re: Re: Re:

          What browser are you using? If you're using TOR for example it's a given that your posts will be held in moderation, caught by the spam filter.

          If you're using another one it's possible that something you've done, your posting habits/frequency has caught the attention of the spam filter as well. One possibility, no idea how accurate it might be is that if enough comments from a particular IP address are flagged they get the spam treatment under the assumption that that address is one used by spammers.

          People do pay for music, this is true - however, there are now huge sources of music where the consumer does not pay (either purchase, subcription, or advertising that in part pays to the artists / creator / rights holders) and that is very different from 20 or 30 years ago.

          The major ones do pay though. YT pays, streaming services pay. They might not pay as much, but market changes often mean changes in payment rates, and as I've noted several times in the past just because you made X yesterday that doesn't mean you're owed X today. Streaming services in particular have caused a shift from 'Large one-time payment now' to 'Smaller but repeated payments over time'.

          Yes, an artist has to work to stand out, but then again, if every artist is doing the same thing to stand out, will anyone really stand out?

          Yeah, that's always been an issue, with the 'solution' being don't just do what everyone else is doing. If something works for someone else try to figure out why it works, adapting it to yourself if you can. The underlying ideas(in this case free 'samples' to get knowledge of skill out) might not change much but the execution can and should.

          Might not work, people might not discover your stuff, or may not think they're worth a second glance, just means you need to change things up, try something else, or perhaps realize that what you're trying just isn't going to work with how the market currently is.

          If enough photographers use the public domain as an ad tool, at what point do they cannibalize the actual market for photographs? Even free has a cost in how it changes the market place.

          I think my previous comment covered this well enough. 'Free' is already widely available yet people continue to pay, so while more wide-spread use of public domain(not technically true, but as close as the law allows) might reduce some sales thanks to people deciding that the free option is good enough, gains such as people finding photographers or artists or writers that they otherwise wouldn't have known about likely outweigh them.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Aug 2016 @ 8:36pm

            Re: Re: Re: Re:

            He's already claimed to use multiple IP addresses in attempts to downvote everyone he disagrees with/can't stand. Probably the filter working as intended and nipping his frothing-at-the-mouth behavior in the bud. And now, he's angry that it's working exactly as intended.

            Must be nice to live in copyrightland where being a crossbreed of douchebag and asshole gets you rewarded.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Aug 2016 @ 12:30am

      Re:

      Whatever not liking it? Shock horror!

      And the funny thing is, That One Guy responded to you within 24 hours, meaning he'd have to have seen it, i.e. the comment wasn't delayed. Bullshitting as usual.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 9 Aug 2016 @ 11:21am

        Re: Re:

        Read his post. He explains it pretty well. I posted at a point, and somewhere in the middle, Mike's minions decided to allow my post to appear. That it took almost 24 hours for an answer proves the point.

        Perhaps you should just troll harder, Paul.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Aug 2016 @ 8:32pm

          Re: Re: Re:

          How did "24 to 72" hours go to "almost 24 hours"? Oh, right, goalpost shifting again, traditional Whatever playbook.

          And whining about everyone being Paul the bogeyman again. Why are you so concerned about who the poster is? Funny how you're so quick to criticize everyone from random Techdirt posters you loathe to people in Australian government who suggest slightly weaker copyright, based on who they are. But the moment people read your comment history like you ask them to and react in kind, you throw a tantrum. Maybe for a moment, just consider this to be one of the reasons why nobody takes you seriously?

          reply to this | link to this | view in chronology ]


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