ASMP and Lessig

First off, I want to make it clear that I think ASMP is (still) a great organization made up of people who have the best intentions to help photographers. Unquestionably, that is so. They do a hell of a lot of good and I am still a proud member. Also, with the changes in the economy I applaud their efforts in trying to help the industry figure out new and better ways of exploiting the intellectual property photographers create and how they work with clients. Now is definitely the time to evolve.

That being said, I am extremely concerned about ASMP’s recent interactions with Lawrence Lessig. He was one of the speakers at the recent Copyright Symposium and, although I can understand giving “the other side” a voice, I think he needs to be ignored/silenced as much as possible. Mr. Lessig is a brilliant man, but he has done more harm to small creative businesses than any other single human in the US, in my opinion. And he continues to be dangerous.

Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. Many have lost their businesses and seen their professional dreams crushed. The idea of “free” content and “free culture” is very much his personal responsibility. His past writings and lectures indicate he did intend exactly what he has achieved culturally, to the detriment of small creative businesses. See the wikipedia entry on the Free Culture movement, and this video of Lessig himself at .

Recently, however, Mr. Lessig has (sort of) changed his tune. He is now claiming that he was trying to get the idea of licensing to the masses and that his intention was to fight against the big business corporate “abuse” of copyright. I’m skeptical. While he may be anti-corporatism (a good thing in my book), I think he still does not see the needs of the little guy and, thus, his idea of balance is off.

For example, he still speaks out against the laws eliminating arcane formalities in order for protections to apply. He claims, in the video cited above, that requiring the formalities was good because it limited how much IP is protected (reducing the number of IP monopolies). He claims that extending copyright terms has no justification (in originalist constitutional policy) but rather was based in modern big corporatism (he doesn’t even consider the extension of the human lifespan over the past 200+ years as well as how there are new methods of exploitation). And sure, Disney benefits by these laws, but so does Bob’s Photography. He misses that completely.

He spins the issue very well, as a good lawyer should, especially an academic one like him. Yes, we need to find new approaches to exploiting the rights of photographers (& other creatives), but his way has most definitely not been the way. Yes, copyright may impede some creative growth, but what about all the incredible creative growth we have seen thus far in our society? Growth done WITH these “onerous” copyright laws? More and more creativity just as the laws have gotten “worse” in his view. How is that possible, Mr. Lessig?

Additionally, at the end of the video cited above, please note that Lessig talks about his new crusade: anti-corruption. Gosh that sounds great, but when you look more closely at what he is saying, it seems to me that it is more of a call to anarchy. He mentions earlier in the lecture that he thought he’d win in front of the Supreme Court and when he didn’t, he discredited the rationale and thinking of the court. Then, he talks about how we have relied on courts to interpret our laws and how maybe that isn’t such a good idea anymore. Really? We should overturn centuries (going back to the Magna Carta, and beyond, really) of reliance on the rule of law as interpreted by people who have devoted their lives to the law and, instead, let the people decide? Really? The same people who think President Obama is a foreigner and that Palin is smart?

To paraphrase Monty Python (The Meaning of Life), the people are not qualified to make the decisions the courts make. Interpretation of the law is a highly specialized intellectual skill (I’m definitely learning that in law school!). Although we (the people in general) have access to more and more information on diverse topics, the knowledge of the people is paper thin in depth, quite often. We the people do not know everything and although we know more than ever we often do not know well that “more.” For example, I know enough about how a combustion engine works to be able to tell my mechanic that I think the problem is in the fuel system, but I am not at all qualified to repair my car.

Moreover, we have to have some faith that our institutions, as flawed as they may be, will continue to work. That’s fundamental to society– faith that the systems we have created will work. So, yes, the courts get it “wrong” sometimes, but they get it right far, far more often (we just don’t hear about the right as much in the news). I cite the state of California for how not having faith in our systems and letting the people decide mean that nothing ever gets done. Here in California, the people vote on proposition after proposition, overturning what the legislature does, meaning well but not really understanding the issues and ramifications of the details of the propositions, and then complaining when the system doesn’t work. Well duh! It’s no wonder this state is circling the drain in many ways (although it is a huge shame).

My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good. Just like it sounds like a great idea for Californians to get to vote on every issue, in reality, it makes things worse. Lessig’s arguments about stifling creativity sound very good, but they are well spun and ignore the reality that creativity has hardly (if at all) been stifled by the laws we have. We, as an industry, must not be taken in.

I hope, most sincerely, that Mr. Lessig has indeed seen the errors of his ways and that he will now contribute to improving the lives of creative professionals. He owes it to them after the damage he has caused via CC, etc. But he has not fundamentally changed his tune, just his spin. And until he proves himself no longer a real enemy to the best interests of photographers and other small creative businesspeople (and I do not use the word “enemy” lightly!), we should not entrust him to be anything other than that which he has proven to be.

39 Replies to “ASMP and Lessig”

  1. I love this post. Huglely love this post.

    I have been against the so called ‘Creative Commons” from the beginning. It is a thinly veiled rights grab, and the most detrimental single thing to come along in commercial and non-commercial art in decades.

    The rants of those who declare that ‘information wants to be free” are there in the books you must buy to read. Hypocritical? Devious? Or simply an intellectual lapse into absurdity?

    Warning photographers of the uncomfortable union of someone who actually wants to eliminate the IP to property because it will benefit corporations seems somewhat dangerous to me. Remember who brings the biggest knife to the knife fight… it ain’t gonna be the photographer.

    The new ‘softer, gentler’ Lessig is no less ingenuous, no less insidious, and no less dangerous. The spin is new, the message is the same…

    “You make it, we get to use it… get out of our way.”

    I am hoping and working toward a time when we can tell this sort of goofball to hit the road, but giving him a voice within a group who stand to lose the most makes the battle even harder.

    Great post, excellent points well stated. I will be tweeting and referencing this article like crazy.

    BTW, I do hope that people who may not share your political opinions are welcome to comment… 🙂

  2. A reminder to anyone wishing to comment: I do NOT, by policy, approve anonymous comments. If you wish to be heard, you have to identify yourself. Thank you for playing.

  3. He spins the issue very well, as a good lawyer should, especially an academic one like him.

    I don’t agree that a “good lawyer should” “spin the issue very well.” The practice of law (and, for the most part, I don’t consider academic work to be the practice of law) are not about “spin”; they are about justice, following the law, and doing the right thing.

    It’s very easy for an academic to make all kinds of waves from a comfortable, easy academic position with tenure. I’m not impressed.

  4. Unfortunately, the problem isn’t Lessig. It’s the fact that the digital age has taken something scarce (the quick identification and development of ideas, especially those of a “creative” nature) and made it plentiful. Designers, photographers, whatever all have to compete with an extra 6-7 billion people connected the world over. What value does your idea have if others are coming up with it somewhere else in the world where first-world copyright laws have no meaning?

    1. @Brandon
      I disagree. Sure, there are many people who are shooting now that weren’t before, but they aren’t really competition, especially not for assignment photographers. Someone who happens to get a good stock image isn’t any competition to a pro photographer who can put together a production, concept a visual solution, and make it all happen every time the client calls.
      People said desktop publishing would kill designers. It didn’t. Same thing here. The low end is gone (in both design and photography), but that is a good thing I think.

  5. Maybe you write of it elsewhere, but could you say a little bit about your argument that a Creative Commons license hurts photographers and small businesses? I’ve used them quite a bit with some success: it’s me saying how I want my work to be used and others agreeing to follow it. For example a photographer could use a CC license with great effect, it seems, by licensing a low resolution version of a photo with “Attribution Share Alike” and the high res version with “Attribution Non-Commercial No Derivatives”.

    Also I’d be interested in hearing some stories of photographers who’ve lost their businesses due to these licensing schemes. (Full disclosure, I’ve worked with some of Lessig’s colleagues at Harvard’s Berkman Center, but it doesn’t necessarily mean I disagree with you.)

  6. I’m a teacher, photographer, webcaster, blogger. All of my work is in the Creative Commons. As a result my work has been used by many people, particularly my photos and my audio recordings. I was paid for none of those. But that’s how I licensed them. I could have chose a traditional copyright, and likely no one would have purchased them either.

    As a result of sharing so widely I’ve received developed a brand for myself which earned me numerous consulting opportunities, conference speaking engagements, and my first conference keynote this year.

    You don’t need to be scared of Lawrence Lessig or the Commons. I’ve met incredible people being part of it (including Lawrence), and really feel like I’m part of something for the benefit of anyone. I don’t think I’m a saint, I just make helpful work available to people for free.

    The Commons is about finding a license that works for you. If it doesn’t work, it doesn’t work. Again, no need to be scared, just don’t participate if you’re not interested.

  7. While I disagree strongly with your thesis, I understand that the issue is personal for you, and I was at least following your line of thought until this statement:

    “Creative Commons and the encouragement of “sharing” instigated and promulgated by Mr. Lessig have hurt a lot of creative people. ”

    How on earth is giving content creators the ability to license their work in EXACTLY the manner they choose “hurting a lot of creative people”!?!

    It feels like you are misunderstanding the concept of free culture, or are confusing it with spec work. The movement is not about destroying copyright, it’s about concerned citizens re-evaluating the role copyright in light of a technological revolution that is changing the way we play/live/work like never before.

    It’s about my choice to put my photography, my music, my video, my ideas into the hands of my peers and fellow creators around the world and letting them re-use, re-mix, and re-interpret my work according to my specific preferences. Lessig has given this movement a legal grounding and done a great service to millions of Americans that have become completely disenfranchised with a copyright system that was not designed to serve creators, but to perpetually enrich shareholders – who do you think Sonny Bono’s biggest donors were?

    It’s sad to see attitudes like yours. I’m sure you are committed to your craft, and I’m sure you do excellent work, but you are clinging to the status quo, even as the world is changing around you.

  8. Okay… this post has hit the ether and I’m getting inundated with comments. To reiterate the STANDING POLICY (started long ago): no comments will be approved without some identifying info–usually that is in the form of a website or an email addy that is not just @gmail or @genericwhatever.

    Getting lots of hate and I won’t post without the person identifying him/herself.

  9. You write: “My point (albeit a bit rambling) is that Lessig knows how to push a listener’s buttons to make his ideas sound not only reasonable, but good.”

    You know how he does this? Using actual examples. I would like to know some specific examples how Creative Commons have hurt actual small businesses. If you wish to make your arguments compelling, please cite some examples of businesses that have gone out of business, but would still be in business if Creative Commons has never existed.

    I am curious.

  10. How, exactly, is a Creative Commons license that only applies to works whose legal owners (usually the creators) have *chosen* to release them under such a license somehow “stealing” from the creators? How, exactly, is extending the copyright term from 50 years after the death of the author to 70 years after the death of the author a necessary adaptation to longer life spans? (People now live 20 more years past their deaths???)

  11. Leslie,

    I stand by my comment above, but in the interest of avoiding any kind of “hate” (I don’t hate you, I’ve never met you!) could you perhaps clarify your feelings towards speculative or amateur work? I feel like this is where a lot of your concern lays, and I know there are a lot of creative professionals that would side with you.

    For example:

    You invest $8k in a digital camera body, and another $5k in lenses, $4k in lighting equipment, etc. Your wedding photography business is booming year after year, until you notice that you are losing jobs to photographers you have never heard of in your area.

    These photographers are young, have little formal training, are using $2k cameras and kit lenses – and generally producing acceptable if not excellent results.

    You and I both know your photos would probably be more attractive, your equipment and experience would lead to stronger staging, better lighting, etc

    But the COST of entry into professional or semi-professional photography has fallen so much in the last 5 years that now you have amateurs charging $900 for what you used to be able to charge $4500 for – AND they are giving the client all the digital negatives in RAW format – no strings attached! While some clients may recognize the value you provide up front and still choose your services, many will be attracted to low prices and the promise of total control over the photos.

    This trend is happening in graphic design, web design, videography, programming, etc.

    As cheaper technology and software enables new generations of amateurs to compete with professionals – there emerges a strong (that’s an understatement!) backlash against crowdsourcing, amateur work, and speculative work. This protest usually emanates from industries fearful of losing jobs, losing work, and being overtaken by a faster, younger, cheaper workforce – albeit less experienced, and perhaps less refined.

    The challenge of professionals is to find ways to differentiate themselves from “cheap or free labor”. If you are so proud of your services, why not just let your work speak for itself?

    I know this comment was less about CC and more about speculative/contest and amateur work, but I wonder if at the end of the day that is more where your real frustration lays.

    Either way, change is unavoidable. Adapt or perish.

    1. What is amazing to me is that so many of the commentors think I am a photographer and have not bothered to learn anything about me or why I am posting as I am. I am not a photographer. I am a law student (an older one) and creative/marketing consultant to commercial photographers. My audience is not (generally) consumer-direct (wedding) photographers but rather those who work with editorial, corporate, and advertising clients.

  12. First off, it’s really too bad that you’ve limited replies to only those who can afford their own domain. Plenty of people have to get by with free gmail accounts (not me, obviously).

    Like the other commenters, I’d like to hear about the examples of businesses destroyed by creative commons. I can give two examples of artists who have flourished in part because of creative commons: Cory Doctorow ( – read “The copyright thing”) and Jonathan Coulton ( Granted, these aren’t photographers, but they are creative professionals.

    So, please, examples of these destroyed businesses.

    1. Karin: One doesn’t need a domain– that is just the easiest method. If someone wants to email me and gove me her/his full name and some info, to prove that it’s not just some spiteful troll who is hiding behind anonymity, that’s fine too.

      As for your other comment, please read the post I made today.

  13. Your other post does not give specific examples. Yes, entire careers might die out. That happens. We don’t have much call for typesetters anymore- but that’s just the way things go.

    Cheers to you, and good luck in your fight. I’ll continue to make my work so other people can repurpose and reuse it, because it gives me a lot of joy.

  14. @Karin I can’t give specific examples because that would be violating the confidence of the photographers who have told me their tales. Many of these people are on the verge of failure but they sure as hell do not want that out in the public!

  15. Leslie,

    Is your position against CC a legal one? Philosophical? Moral? I concur with other commentators, if your clients are failing, it’s because they have failed to adapt to the world around them.

    Change is difficult, change is challenging, and sometimes it can be scary – but change is inevitable. Instead of fighting it, embrace change and learn to adapt!


  16. You complain about “hatefulness” of commenters, but you call for Lessig to be “silenced”; that’s not something that anybody supporting the American tradition of freedom of speech ought to want. I disagree strongly with your opinion, but have no desire to “silence” you.

  17. @Dan T You make a good point about silencing. It was a quick turn of phrase and it does rub wrong. I don’t mean that he should be silenced in the world, I mean ASMP should not give him a forum, that’s all.

  18. It seems that there are a lot of people here demanding examples of how, specifically, the topics being addressed have affected professional creatives, especially photographers (being a photographer is the only point of view I have to speak from). And since Leslie’s hands seem to be tied by professional ethics (and rightly they should be, Im sure everyone here can understand her respecting the privacy of her clients and friends) I can at least relate some instances and examples from my own experiences, which, as one of the “young creatives” people seem to mentioning may at least be of some interest to the discussion.

    Some Background.

    I am a young emerging photographer (28) working out of Buffalo, NY, a small but respectable and growing market. I do often have to travel for business due to my specialty being in the style and music journalism arenas, but I do often work on commercial jobs with clients in Western New York. I have been doing this professionally, and full time for apx 3 years now. I also work closely with the ASMP and various photo education groups in my area and have been a vocal participant in discussions about changing business models and evolutions in the photography industry. I do not consider myself a zealot on either side of the discussion, but would like to make a few points, which may or may not relate to this discussion depending on how much one is involved in the professional photography industry.

    Because of my position in the industry, that of an emerging professional in my area, I am still in the process of building my business. I often have to deal with cash-flow issues, chasing down clients for overdue invoices, dealing with those “oh shit” moments that are part of the rocky beginnings of any new business. One of the factors that has made this increasingly difficult the past few years has been that several of my local clients have started to return estimates to me, estimates which are usually broken down by my creative fee and a licensing fee, as well as production costs. I have had buyers suggest (suggest being a subjective term, it ranges from gently nudge to downright demand) that I eliminate any licensing fees all together, or that I provide them a lifetime grant of license, with no limitations. To me this does not make any sense, my work is a commodity, just like their product is and has an intrinsic value based on my skill, past performance, and education/expertise in my field. What really effects me though is when these buyers return with the threat “if you don’t want the job, we’ll just get something CC off the net”

    I understand that using a CC license is a choice for the artist, I can understand that a lot of people who license under CC also have secondary income streams and I am not blaming them, whereas many artists who do nothing but provide photographic services to clients would be vary wary of losing control of their IP. The major problem I have is when a client starts to swing CC around like a weapon, using it to bludgeon a creative professional into giving up licensing rights. Im not sure if this can squarely be blamed on the language or intent of CC, and I don’t think that is the issue in this example. What I think the issue is, at least in terms of what I am speaking about, is the abuse of the CC system weapon or looming threat by many buyers. Perhaps i’m off topic, but that is the point I had to get off my chest.

    I have also run into several stories of infringers. both in a commercial and on a personal consumer level, who have used CC as a scapegoat for why they felt the need to misappropriate IP from a creative for their own use. I am less personally involved in these anecdotes, and understand that that is the infringer at fault, not CC, but it does open up the discussion; will CC stand to support those few who do suffer due to people misusing it, not understanding it, or just plain warping it to their own needs. Will CC become more involved in educating consumers and potential thieves about copyright law in general?

    CC is an interesting place to start the discussion, but as a working professional, especially a young one, capable of embracing change and adapting. I still think that CC needs to be further refined and evolved, I just don’t think it is there yet in terms of providing language that allows a creative to protect their property. Perhaps one day it will but I think that CC needs to be more receptive of the needs of the professional community. CC also needs to be more involved in educating consumers that CC is meant as a way of standardizing certain licensing types, and that it is not a free for all terms allowing infringers to take what they will from the web, nor should it a proverbial guillotine for buyers to use as a threat to drive prices and values lower industry wide. perhaps these re isolated incidents, and my feelings are not shared by everyone, but they have been my experience at least.

  19. If there’s stuff of sufficient quality to substitute for professional work that’s been released for free under CC (or other) licenses, then people have every right to use it instead of professional work even if it puts some professionals out of work. The world doesn’t owe anybody a living.

  20. As a photographer who has release work under the creative commons, I see no issues.

    The core of your post is predicated on Mr Lessig’s responsiblity for “hurt(ing) a lot of creative people. Many have lost their businesses and seen their professional dreams crushed. The idea of “free” content and “free culture” is very much his personal responsibility.”

    But you give no examples (even anonymised ones). I have yet to know of *any* individual who has been hurt at all buy creative commons.

    Yes, certain markets are atrophying because of supply and demand shifts. Yes, if you start a business and do not adapt to changing environments, you will end up losing your business. This is a fundamental aspect of any business – it’s like blaming Fox Talbot for putting daguerreotypists out of business!

    You should be thanking creative commons because it has commoditised the low end of photography and now the people who have *real* talent can be recognised as such. Not everyone with a camera and a modicum of talent can make money. Now you have to have real talent and a pin sharp business brain.

    Lawrence Lessig has done more for the democratisation of knowledge and the advancement of learning in his lifetime than you could ever know.

    To talk about ‘silencing him’ because a side effect of freedom has an effect on your/their business’s is an incredibly conservative/selfish viewpoint.

  21. My problem with CC is the peer pressure to use it, and the sudden idea that anything is free for the taking if you can find it on the web. When I went to art school, one had to prove to Kinko’s that it was indeed my own photography (or something I had the right to use) in the mockups for book covers I was creating for class. But yeah, that was back in the day of wax-and-paste so a lot has changed and I am officially a prehistoric dinosaur.

    I know a few examples of web-pilfering happening to other illustrators who share their work on the web more freely that I do, but you’ll find that under “plagarism” rather than what it actually is, rights infringement. The first example here is of an art student, who traced a working illustrators work for her textile work – and won prizes with it. What does that say about the education of creative people today? Why do art students today have the impression/idea in their head that they are allowed to do this?

    The second example is Paper Chase who created tote bags with artwork traced from another artist.

  22. A few months ago I would have been prone to agree with you. Since then however I have had a Chinese condom steal my work and use it in billboards, banners, display cases, etc…
    My lawyer was so expensive that I ran out of money pretty quickly and nothing was resolved. The company still uses my work and I am stuck paying a $150 every time my lawyer “contemplates” an email I send. The way I see it IP protects only corporations like Disney who have deep pockets. “bob the photographer” has very little fighting chance. I may own the copyright to my work but without the the money to back it up it means squat.

    I don’t meant to imply I agree with creative commons but conventional laws regarding IP don’t work for me.

  23. Thank you for stepping out and speaking up on behalf of those who depend on the protection of image copyright and licensing. Banks, grocery stores, utilities, etc., for some reason don’t like it when we approach them for a “common use” grab of their services and products. For some reason they prefer cash on a quid pro quo basis. I guess that’s why we prefer the same to license our work. CC may be a non-profit organization, but we are trying not to be, nor do we want to be driven to it.

  24. I know many cases like Daryl Banks happening to creative friends of mine as well. Add overseas legal wrangling to it all (say, a photographer i Denmark and a newspaper in India) and it seems impossible to get things resolved without being out a lot of money.

    Some of my friends have been lucky in that they are part of the photographers union in Denmark, where the union takes the legal battle for them. The flurry of battles they have had to fight for their members has caused a sharp increase in union fees however.

    I agree that the current copyright law does very little to help individual creators in the united states, however the reason it does so little is because nobody respects it. When did this disrespect start? Has it always been this way? Think about it.

  25. @Dabitch: The (mistaken) idea that everything on the Web is free for the taking predates Creative Commons, and wouldn’t go away if CC vanished. CC simply represents an attempt to assert some creator rights in a way that might manage to stick even within the (pre-existing) Internet mindsets about intellectual property.

    I also had Kinko’s sometimes hassle me in the past about things I was copying (which I had complete rights to), in those cases generally text. I kind of resented their being “IP police” over the stuff I was publishing, and was glad when the Internet came along and made it possible to self-publish without having to prove anything to anybody.

  26. Surely creative commons only ADDS to the options a photographer has when they decide how they want to license their work. How is that hurting them? It’s giving them more fine-grained choices over what control to exert.

    1. No Jonathan… it added NOTHING to the licensing system. All was totally available before CC. It was (and is) a sham, a fake, the emperor’s new clothes of licensing.

  27. With all the changes brought about by the advent of digital media and the internet it is more important than ever that there be thoughtful and conscientious debate on the future of copyright.

    As an ASMP member and fulltime working pro photographer I applaud ASMP for bringing Professor Lessig into the discussion and strongly disagree with your desire to ignore and even “silence” people you don’t agree with.

    For those reader who want to see the full program the videos of the ASMP program are available online at

    Lessig’s presentation is at

    Chase Jarvis

    The panel discussion is at

    There are major issues surrounding copyright in the digital age and the ASMP conference was a good first step in addressing them for photographers.

    1. I just watched Lessig’s presentation and it was horrifying in its propagandizing. I will be writing more on it, next week, but as I put it on FB, he makes false analogies, uses false premises, and makes false arguments that appeal to our emotions so that we, as an audience, want, desperately, to believe him. We want to, as he asks, help him. But all that emotion is just that– emotion. Not fact, not reality. He is a masterful communicator and his hero (Ronald Reagan) would be proud of how he can twist the issue to serve his desired results.

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