As I will be giving a lecture March 25 which will rely heavily upon the idea of property rights (the lecture itself is about Austrian Economics), I feel it is necessary to give just a taste of what is to come. Consider briefly the necessity of these things for the existence of property:

1. Land – By this it is meant that property must come from some natural resource. You can replace this term with “raw material” or “malleable good” or whatever should so happen to suit your fancy. The idea behind it is basically that in order to be property it needs to be “something” which can be manipulated, controlled, etc. In other words property must be some combination of your “land” with your

2. Labor – Simple and easy bullet point of most theories of property. This is the idea that one must do something to Something in order to claim that Something as their own. Hardly anyone would say by simply walking across an open field that it belongs to you, but if one were to tiller and enrich the soil, well, then, maybe that field might become yours. But only if this mixture of land and labor has

3. Excludability – This seems to be the big one that no one quite pinned down. Tons of other ideas were bandied about from “intrinsic value” to “reasonable use” to “intent to profit” at our Intellectual Property Rights meeting, but each of these misses the key point. In order for someone to claim dominion over something — for instance, our tilled field — it must be possible to exclude others from it. If this condition isn’t satisfied, then something cannot be owned. We can put a fence around our field, hence it is excludable, thus it is able to be owned.

But can anyone really be excluded from using the alphabet or the positive integers or Newton’s second law? No. But  by the same logic can anyone be excluded from the idea of the steam engine or the chemical formulation of aspirin? There is no Platonic ideal that people can claim dominion over. No one owns the idea of the iPod: people simply own iPods and the means to make iPods. This is because the information — what is “intellectual property” but a claim over information? — exists and is nonexcludable. Newton couldn’t claim to own his laws because his laws, as information, are unownable.

Maybe this’ll help.

Probably not.

© Barry Belmont for UNR Students for Liberty, 2010.
Permalink | No comment

One cheerful Sunday afternoon, you get a brilliant idea for a new shoot you want to do, and you hire a beautiful model to come and pose for them. She arrives, and you pay her, by her own set fees (by the hour or by a preset, static charge, it doesn’t matter. She makes the rules.) for her services.

Once the shoot is done, the money paid, you thank your model for her valuable time and she, with a smile, walks out of your studio and back into that brilliant Sunday afternoon. You retreat to your little artist corner, process and print the photographs, and begin arranging your project in the way most aesthetically pleasing to your personal preference.

Later that week you present your series at a gallery. Art enthusiasts from around the country show up to the gallery, and one particular enthusiast likes your work. He offers you a handsome amount for the series–more than enough to pay the bills for the month–and you graciously accept. He walks away with your prints in hand, and all parties are content. He got a beautiful set of images for his living room decor, and you get to buy groceries.

However, a little kink in the system manages to break your good mood. The model (whom you have already paid for her services) discovers that the generous enthusiast paid good money for the pictures, and she’s unhappy. It is her image presented in those pictures, she argues, and she deserves a cut of the profits. She takes you to court, and despite your most desperate pleas, her case stands above yours. Now you not only wasted all of the money (and then some) hiring a lawyer to defend yourself, but you didn’t even win. You must resort to selling off your photography equipment, renting out your studio, and in the end you manage to snag a job at Wal-Mart working in the electronics department. You lose credibility not only as an artist, but as a photographer in general.

This is how things work today. Though maybe a little melodramatic (hopefully you, as the hypothetical photographer, would have been able to get a better job than one at Wal-Mart), the question I wish to pose stands the same.

Does a person have a right to his or her image?

Consider the scenario again. The model came into the photographer’s studio. The photographer used his own camera to take pictures of her. He used his own equipment to process and print the pictures. The very series was his idea (though this becomes a skewed line when we look at intellectual property rights–which will be discussed at tonight’s meeting!). Overall, all the model had to do was pose, and he paid her, on her terms, for every second of her time that he consumed with his project.

However, simply because it was her face in the pictures, the model claimed a right to any profit made from them. Because she stood in front of a camera for a couple of hours and let that photographer snap his shutter down to capture her likeness into a data file in his SD memory card, she believed that they belonged, at least in part, to her.

In photography the situation is tricky. For anything media related there needn’t be any model consent as to where the pictures are used. For example, the paparazzi can snap pictures of any celebrity they so choose and use those images in any “newsworthy” way possible without reaping any repercussion. The reasoning behind this is first amendment infringement. However, if a photographer wishes to use his images for any commercial use, whether it be in advertising, stock photography, or any creative outlet that could result in a sale, he must get a signed contract with the model, getting her permission to use her image for monetary gain. Usually these contracts (called “model releases”) will deem exactly where the pictures are being used and for what purpose. Sometimes they will outline how much (if any) of the profits made from any sale of the picture will be granted to the model. Though the legal elements may make sense, I want to know, is it justified?

The model owns her face, true. It is part of her body, her personal property. So the photographer (and anyone, at that matter) doesn’t have the right to take her physical face and sell it for his own gain. However, after the picture has been taken, and the likeness of her face is processed and printed (with the photographer’s own equipment), does she hold any claim to it? Does she have the right to tell the photographer where he is and is not allowed to use the work he slaved over (trust me–processing pictures is no simple task. Color photography is kicking my ass), while the only thing she contributed was her time (which he paid her for, on her terms, I remind you), and the likeness of her face?

It is similar to asking if a person can own his or her reputation. I don’t believe one can. With the photography scenario it poses a similar concept. Once the shutter has been released, the light going through the lens and onto the sensor and collecting as data on that memory card, which will then be read on a computer to display an image of the likeness of the model, she holds no claim over it. She was not paying the photographer for the pictures–he was paying her. She has about as much claim on those pictures as a carpenter does on a house he has been paid to build. Whatever he chooses to do with those images is out of her control. Whether he sells them as wonderful pieces of art, draws mustaches on them in permanent marker, or decides to run down the street and throw them, by the hundreds, around him like confetti, she can do absolutely nothing.

Sadly, that isn’t how it works.

As it stands, a model has nearly more of a right to a photographer’s work than the photographer himself has. Her possession of her “image” is greater than his possession of his physical work and labor to make that work.

I’m not sure about you, but something there doesn’t quite click with me.

© Mary Hunton for UNR Students for Liberty, 2010.
Permalink | 3 comments