Expensive Gifts

What does free culture cost?
July 24, 2009

One evening in February 2009, the artist Shepard Fairey spoke at the New York Public Library. He was discussing his famous silkscreen poster Hope, which bore Barack Obama’s face, shadowed by swirling red and blue patterns. At the event, Fairey sat with legs akimbo, artfully slouched before the gilded, packed room, still retaining his old skate-punk persona. Speaking in a skater’s staccato pidgin, he said he was “stoked” about the poster and had “diligently perpetuated” the image on his own dime, putting it up on Facebook and MySpace and e-mailing it far and wide.

Fairey had been an haute graffiti artist for two decades. He borrowed from existing images in order to create silkscreens that mocked American corporate culture or extolled rock stars. He plastered these images across cities and towns, in what could be called anti-advertising advertising campaigns, testing the boundary between thievery and homage. All in all, he was pretty appealing, with his tufts of hair, drolly subversive demeanor, and images-must-be-free stance. I found myself nodding along as he spoke that night, in discussion with that chic legal scholar Lawrence Lessig, a founding father of “free culture.”

Free culture has a long history, but simply put, it’s an ideology that argues for finding a more balanced copyright law, one under which listeners and readers have as much legal protection as publishers and authors. It is based on an economy of giving: people freely distributing their work and allowing it to be augmented. In return, the givers get knowledge that their work is being creatively used and absorbed by many people. The most extreme entirely reject intellectual property, but most simply want copyright to be less restrictive. As Jay Rosen, an associate professor at New York University’s journalism department, put it, by sharing one’s work, “you gain not lose. That’s what Wikipedia is based on. This philosophy starts in the same place that journalism starts.”

Fairey wasn’t onstage just because he was cool: he was a literal poster child for appropriation. A month or so before the event, The Associated Press had accused him publicly of copying one of its photographs, without payment or permission. In response, Fairey sued the AP. He argued that he had used freelancer Mannie Garcia’s photograph, which Garcia sold to the AP, “as a visual reference for a highly transformative purpose.” He sought a court order that would say his Obama image didn’t violate AP’s copyright. Fairey claimed his work was covered under the fair use exception to the copyright statute. Among other things, fair use allows for the use of preexisting content and images, as long as the new work is a true alteration of the original.

At the library that evening in February, Fairey presented himself as the innocent provocateur—that familiar art-world paradox that is somewhere south of the wise fool—who had been unfairly attacked by a media titan. In Fairey’s drama, the AP was the heavy and he the defiant “little guy.” As Fairey spoke that night, though, reality began to set in. He had appropriated the image of an even littler guy, a freelance photographer, without even finding out who he was, let alone acknowledging his work. And the AP was striking back not because it was simply censorious, but because it had watched, hapless, like so many financially stressed news entities, as its content was siphoned off on the Web. And although Fairey cited fair use, the line between fair use and infringement can be foggy. Under fair use, one person’s work can be used by another person or organization, but only in certain contexts—in criticism, for example, when a reviewer quotes from a book or uses an image to illustrate a point. But it’s not clearly quantified: How many lines of text? Unknown. How much of a photo can be reused? Not sure.

Because the world is changing, and the world of journalism in particular is transforming, Fairey automatically became part of another story, one provocation among many copyright issues that are bedeviling journalism. Fairey’s case also showed me most clearly that “payment” for the use of journalistic or creative works is not just about the money anymore, at least for independent writers and artists.

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It’s about money and a parallel currency that may be as valuable to some as money: attribution by name, or even collaborative attribution. These should be the new rules for photojournalism and journalism per se in the age of appropriation. In the new world of “ethical” use, couldn’t Shepard Fairey’s Obama image have had the credit “Photo illustration by Mannie Garcia and Shepard Fairey” from the beginning?

Yet for the AP and the rest of the legacy media, attribution doesn’t solve much. For anyone who cherishes the hidebound institutions of journalism and the original reporting and writing on which they are built, the eager technologists and crowd-sorcerers are living on fumes. No one knows, the old schoolers say, how well or badly this new world of open, populist, and participatory culture will actually play out. And they worry that free culture is helping to kill off flawed but essential institutions.

The Fairey brouhaha didn’t happen in a vacuum. The last decade or so has seen a rise in the ideas of free culture. We know how free culture is being defined these days, and how it sometimes collides with copyright claims. But where does the original idea for it come from? The intellectual enshrinement of the idea of the gift—something given by one party to another with no direct repayment—has a longer history than this. I see a link between today’s free culturists and twentieth-century anthropologist Marcel Mauss, who argues in his book, The Gift, that gifts are never “free” but rather are a kind of social magic, as they give rise to reciprocal exchange and tie the giver to the receiver. According to Mauss, social solidarity is created by a warp and woof of gifts both given and received.

Much later, a quarter of a century ago, Lewis Hyde published his book, also titled The Gift, an ur-text that sits on the shelves at Harvard College and in the tents of Burning Man. In it, Hyde argues that there are aspects of life that are not best organized by a marketplace of currency exchange—artistic practice, customs of birth and death and relationships, and teachers’ gifts of knowledge. Hyde was primarily writing about “the gift” in the context of literature and folk culture, but the notion flows into other contexts as well.

Around the same time that Hyde’s Gift was published, some people started thinking about how the gift economy, and the exchange of ideas and the building of reputation and name rather than capital, related to software. These were people like Richard Stallman, the founder of Gnu, now President of the Free Software Foundation, who has long believed that it was improper to refuse to share information with someone who needs it. Stallman famously said that free culture means free as in “free speech,” not “free beer.”

Originally, the ideology of free culture, and its more sedate policy-oriented sibling, progressive copyright law, were a way of protecting imaginative citizens from the dauphins of Disney and the mammoth record labels and the like, who would not let artists and writers and citizens employ the dauphins’ images or songs in their art or commerce. Free culture was meant as a check on the excessive capitalist zeal of entertainment conglomerates that would otherwise lock up all their daughters, from Jane Austen to Snow White. The term was originally the title of a 2004 book by Lawrence Lessig, but it came to stand in for other movements as well—hacker computing, the access-to-knowledge movement, and the “copyleft” movement, among others.

Legal scholars like Lessig broke ground with their arguments for looser, “progressive” copyright law, writing books and targeting some of these corporate interests. The Creative Commons was founded, a nonprofit organization that worked to increase the body of work that is available to the public for “free and legal sharing and use.” The Creative Commons began offering what are called CC licenses: licenses that allow others to copy and distribute a person’s work provided the copiers give the originator credit. Creative Commons licenses are intended for those who don’t want to depend on fair use, says the CC’s Fred Benenson. (Wikimedia is soon to adopt CC licenses for its collectively created property.)

But the institutions dominating the copyright debate are different than they were in even the recent past. The tide has turned. Free culture once defended culture producers against corporations. Now, free culture may well threaten the small culture-producers themselves. That’s because so many people produce their own intellectual property, often unaffiliated with institutions and corporations, that these “little guys”—freelancers like Mannie Garcia—are the ones being appropriated from.

Free culture has also become a more pertinent term within journalism. Clay Shirky, a scholar at NYU, wrote about it recently in an adept essay on the future of media. He asserted that it was the “real world” of media, printed on paper and bought and sold, that had become sci-fi. “Revolutions create a curious inversion of perception,” he wrote. “Inside the papers, the pragmatists were the ones simply looking out the window and noticing that the real world was increasingly resembling the unthinkable scenario.” In Shirky’s essay, some of the technologically-enabled media types like himself wonder out loud how things would be different if old-school newspapers and newsmagazines were financially healthy. Would they bother sniping at free culture? They suggest that these journalists and others fail to understand that free culture isn’t the thing that is killing them: the market is. The old-school types were only imagining that the devils of recession, cheap Web ads, and Craigslist are the fault of free culture. Fred Benenson scowled at the AP, saying it was a “copyright bully” that is “hurting its own brand” by going after Fairey.

On the other side, the AP appeared to be positioning itself as the punisher, lobbying for payment from aggregators of original content, setting its sights on Fairey and then Google for aggregating AP content on Google News. The AP also threatened a “news blackout”—meaning that if Google didn’t strike a fair deal with the AP, Google would not get AP copy. The AP would also try to redirect users away from secondary sources that post the AP’s original content. In the mosh pit of punditry, old-school journalists started lashing out at what they see as “freeloading” Web types, their arguments falling like so many angry emoticons. Michael Moran, for instance, who runs the Council on Foreign Relations’s Web site, recently vented in The Nation about “Internet thinkers like Clay Shirky and Jay Rosen, who have elevated the ethos of free information to unreasonable heights.”

Who’s right? And why couldn’t they come together to find a new way to support journalists? Could requisite attribution be part of the solution? Attribution might be—here’s a wonderfully icky word—monetizable for individuals, especially the growing number of freelancers producing original content, and thus it is significant. The beleaguered newspapers and The Associated Press are not looking for attribution but for money to support their newsrooms. Content given away for free undermines their ability to survive, as they see it. On the other hand, there is so much to be said for free access to materials that we can use in our writing and in our images. After all, in order to write this, I am benefiting from free sources—published newspapers that are available online. And yes, my own work can be found at alissaquart.com (feel free to visit after reading this!).

I went to Boston’s Institute of Contemporary Art to see the museum’s giant Shepard Fairey retrospective and get a closer look at the image that has become the emblem of these debates. Walking through the show, on the way to Hope: The Poster, I passed dozens of Fairey’s silkscreens. Most were from images appropriated from newspapers or album covers. Some were beautiful. Others were pedantic, charismatic, or fanboy absurd. Almost all contained Fairey’s favorite legend, “Obey,” although the irony of the word wasn’t always clear. Who were we to obey? Fairey? I couldn’t help but remember some of the cease-and-desist letters Fairey has sent to artists who had done their own remixes of the original images. Some of the images looked like advertisements, and in fact were ads . . . for Shepard Fairey.

The Obama silkscreen was somewhere at the show’s center. Walking up to it, I could see it was majestic—a marked transformation of the original. But seeing the poster only underscored how the traditional battle over copyright, in which the citizen was up against the corporation, has changed. In today’s world, Fairey may be an artist, but he is also something of a corporation, and he is up against another corporation, the AP. The person left out initially was the creator of the original image, Garcia, who made it in April 2006 while on assignment for the AP. While the AP believes it deserves credit and compensation, Garcia thinks that he owns the photo’s copyright. In this case, money is no longer the absolute end point: Fairey profited economically and in terms of his reputation from his name “being out there.” And from the start, Garcia would have been “out there” as well if Fairey had added his name to the work. Indeed, Garcia did profit from the image once his name got out; he earned thousands of dollars when his photographs were sold in 2009, after being exhibited at the National Gallery and a private gallery.

Obligatory attribution could easily be written into copyright law, argues Greg Lastowka, a legal scholar who is a visiting professor and specialist in intellectual property at Columbia Law School. Lastowka and others say that at the least, writers, journalists, and artists could be paid in “attribution currency.” Today, some journalists and photojournalists are dependent on their names more than their institutional affiliations—credit-by-name is the coin of the realm. “Now, journalists should build a career on an icon or an image, by being appropriated as much as appropriating,” Michael Heller, a professor at Columbia Law School and author of The Gridlock Economy, told me.

And finally, what are we to make of that other persuasive and idealistic argument for “the gift” in culture—that an open flow produces more innovations and greater enlightenment? It’s a profound concept. But there’s been a certain lack of reciprocity in some quarters of contemporary culture, including journalism. These days, many of the professional journalists and photographers who give away their work feel that they don’t receive enough in exchange, at least not yet. With proper attribution, the culture of the gift will and can help the smaller journalists. The gift economy, though, probably won’t help the AP and the big media companies much. And as always, a gift freely given is one thing, but a gift that is taken is another. 

Alissa Quart is the executive director of the Economic Hardship Reporting Project, a journalism nonprofit devoted to covering inequality. The author of five nonfiction books (including Bootstrapped (2023) and two poetry collections, she has also contributed to the New York Times, The Guardian, and the New York Review of Books, among other publications.