Author: ninapaley

On July 16th I gave at talk at H.O.P.E. (Hackers On Planet Earth) called “Sita Sings the Blues: a Free Culture Success Story.” 9 Minutes of excerpts are below, in which I discuss why I insisted on authentic songs, what is and is not property, how software is culture, the difference between Share Alike (copyleft) and other Creative Commons licenses, why I paid to legally license the old songs, how noncommercial copyright infringement is still illegal, legal costs, benefits of audience sharing & decentralized distribution, the Sita Sings the Blues Merchandise Empire (, open-licensed merch, audience goodwill, how fans support artists, rivalrous vs. non-rivalrous goods, the Creator Endorsed Mark, migrating Flash files to open formats, gift income, commerce without monopolies, why I encourage legal sharing, and more.

For those with longer attention spans, you can watch the entire unedited hour-long talk on vimeo. It includes even more topics like Minute Memes, cultural lineages, combining vs. originating, many Ramayanas, our impoverished Public Domain, understanding Free Culture, Content vs. Containers, and a more detailed income breakdown of the Sita Free Distribution Project.

cross-posted from

In my endless attempt to explain what’s wrong with Creative Commons’ “non-commercial” and “no derivatives” restrictions, I came across this 2005 article by Benjamin Mako Hill:

Free Software’s fundamental document is Richard Stallman’s Free Software Definitions (FSD) [3]. At its core, the FSD lists four freedoms:

  • The freedom to run the program, for any purpose;
  • The freedom to study how the program works, and adapt it to your needs;
  • The freedom to redistribute copies so you can help your neighbor;
  • The freedom to improve the program, and release your improvements to the public, so that the whole community benefits;

…For the CC founders and many of CC’s advocates, FOSS’s success is a source of inspiration. However, despite CC’s stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software’s success is built upon an ethical position. CC sets no such standard.

This has led to a proliferation of harmful and incompatible CC-NC and CC-ND licensed works, mistakenly labeled “Free.” Mako Hill points out that while Creative Commons pursued its goal of “Balance, compromise, and moderation,” it failed to define or defend any core freedoms. Indeed, there seems to be no concern about what the “Free” in Free Culture means. To most it means, “slightly less restrictive than modern copyright.” Even so, most CC licenses are more restrictive than pre-1970’s copyright (because modern copyright’s extended terms and more draconian punishments for infringements still apply).

Fortunately the Four Freedoms of Free Software easily apply to Culture:

  1. the freedom to use the work and enjoy the benefits of using it
  2. the freedom to study the work and to apply knowledge acquired from it
  3. the freedom to make and redistribute copies, in whole or in part, of the information or expression
  4. the freedom to make changes and improvements, and to distribute derivative works

That’s not so hard, is it?

Ironically I was arguing with Richard Stallman last month about the Free Software Foundation‘s use of -ND licenses on its cultural works. A film they sponsored, Patent Absurdity, has “no derivatives” restrictions even though it could be greatly improved by editing, and clips could be highly beneficial in other works. Freedom #4 FAIL. Even the FSF fails to apply the Four Freedoms to Culture!

Software IS culture. Many in the Free Software Movement draw a false distinction between “utility” and “aesthetics,” claiming software is useful and culture is just pretty or entertaining. But you never know how a cultural work might prove useful to someone else down the line. If you treat it as non-useful, and restrict it to prevent other uses, then of course it won’t be useful – you’ve restricted its utility through an unFree license.

The Free Software community needs to learn that Software is Culture. The Free Culture community needs to learn that Free is Free.

FREE. CULTURE. It’s not so hard.

Cross-posted from


Sita Sings the Blues is now available FREE for the iPhone, rather than for $3.99. The former price was required because for every copy of Sita “sold,” I had to pay almost $2 to extortionate corporate licensors. That’s a flat fee; doesn’t matter what the sale price is. So selling Sita apps for the customary $.99 would result in a huge loss for me, since I’d be paying far more than that to the licensors.

The solution of course was to make it FREE (gratis). They’re all Promotional Copies. No sale, no license fee. To support Mars Yau, who created the app, and me, who created the movie, you can buy the Sita Wallpaper App for $.99. And of course you can always donate to the Sita Distribution Project.

I’m especially gratified by app develope Mars Yau’s correct use if the Creator Endorsed Mark. It’s displayed prominently on the free app, indicating my authentic endorsement of this particulr distribution. On the $.99 Wallpaper app, he applied the “50% supports the artist” version:


SitaWallpaperLeft.480x480-75 SitaWallpaperRight.480x480-75

This lets potential buyers know that he will share with me 50% of his profits from the app. Since the wallpaper app is offered for sale as a way to support me and him (since the movie app is gratis) the 50% Creator Endorsed Mark is a selling point, adding value to it.

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Released under a Creative Commons Attribution-ShareAlike 3.0 license. All Creative Work Is Derivative by Nina Paley, is the second meme of our Minute Memes series. It was supported by a grant from The Andy Warhol Foundation for Visual Arts.

View at YouTube or download high resolution and OGG formats at the Internet Archive.


Message: All Creative Work is Derivative.

Why: Copyright control extends not just to verbatim copies, but to “derivative works.” This has led to censorship on a grand scale. For example, the seminal German silent film “Nosferatu” was deemed a derivative work of “Dracula” and courts ordered all copies destroyed. Shortly before his death, author J.D. Salinger convinced U.S. courts to censor another author who transformed his characters. And so on.

The whole history of human culture evolves through copying, making tiny transformations (sometimes called “errors”) with each replication. Copying is the engine of cultural progress. It is not “stealing.” It is, in fact, quite beautiful, and leads to a cultural diversity that inspires awe.

How: On January 6, 2010, I emailed my Free Culture Lunch friends:

Who wants to join me on a Free Culture field trip to the Met Museum? It’s research for “Minute Meme #(2): All Creative Work Is Derivative” ( ). Where better to see real, historical examples of art influencing other art than the Met?

The goal would be to find clear examples of visual language evolution. The Met is huge, so we could split up and then regroup to discuss our finds. Or we could all look at one part together, discussing as we go along. I think they allow photography as long as there’s no flash. It would be educational, anyway, and that’s good, right? I almost never go to museums and I live in New York.

I was very affected by a South Asian sculpture exhibit I saw at the Met years ago (I was early in producing “Sita” and still seeking Ramayana art) which made it very clear how ancient Greece and India were cross-pollinating each other. There was one period in which Greek and Indian sculpture were almost indistinguishable. This is especially striking since we’re taught “Western” and “Eastern” history are separate; when the British colonized India centuries later, it was like a lost exotic land to them. That was just one tiny little part of the giant Met, and unexpected….

And so, on January 17, it came to pass:

Clockwise from Left: Mike, Robert, Sundar, Caroline, Kai, Barry, Winnie. Jenn arrived slightly later.

In an heroic effort, I managed to run through the Greek/Roman, Asian (South, South East, and Central) and Medieval European galleries. I took 482 photos that day, not knowing exactly what I was looking for. I spent the following week going through each photo, adjusting levels and contrast, and wondering what I’d do with them. Gradually I saw the possibility of animating continuous movements using poses from historical works. The photographs I had weren’t sufficient, which led me to return to the Met by myself on January 26. This time I had a better idea of what kind of photos I wanted: “full-body” shots of specific poses. I took 432 more photos, this time covering Egypt, Oceania, and the Americas.

914 photos total. I carefully examined and adjusted almost every one. 435 of them made it into a folder called “Poses,” where I sorted them into categories: Standing, Sitting, Kneeling, Walking, Couples, Dancing, Running, Angels, Christ/Cross, Madonnas, Animals, and Other. Some of those categories obviously didn’t make it into the finished movie; for example, these Madonnas:

Egyptian MadonnaAfrican MadonnaSouth Asian MadonnaEuropean Madonna

Once I sorted the poses, I masked them in Flash (tracing by hand with my trusty Cintiq stylus) to give them a clean vector edge. If I’d removed the backgrounds in Photoshop, they’d have pixellated edges, which would look “buzzy” in the finished animation.

Masking 1Masking 2Masking 3

Although I didn’t mask all of the photos, I did mask many I didn’t end up using. But once I found the right ones, it was pretty easy to put everything together. 112 photos made it into the finished piece (my counting is fallible, it may be slightly more or less, but I counted 112 in the Flash file’s Library.)

I animated on 3’s, meaning 3 frames per image/8 images per second (at 24 frames per second). Usually I animate on one frame per image/24 images per second, so animation-wise, this is in some ways my crudest, choppiest film. But the frame rate needed to be slower to give the eye enough time to see some of the detail in each photograph.

The whole movie is a single “take.” There are no cuts, zooms, pans, scene changes, or closeups. It’s usually hard to sustain interest without such editing techniques, but in this case they would have confused the eye and muddied up the experience. This movie demands a lot of concentration from the viewer, and too many tricks would distract more than help.

The music is Sita’s String Theory by genius Todd Michaelsen, who composed much of the score of Sita Sings the Blues. It is a “bonus track” he contributed to the upcoming official soundtrack CD. While listening through the entire CD master at Greg Sextro’s studio, I realized Sita’s String Theory would make a fine track for All Creative Work Is Derivative. It was CC-BY-SA licensed already, making it legally compatible with the project. Its beat is a denominator of 24fps, so it would work with my animation. And of course it sounds wonderful.

One person’s “influence” is another’s “infringement.” A time-travelling IP lawyer could find all kinds of infringements at the Met. Greeks, Egyptians, and South Asians influenced each other heavily; was this “borrowing,” “stealing,” or “copyright infringement?”

Hellenic Egyptian
This chick is an Ancient Egyptian!

Hellenic South Asian
Does this head look Greek to you? Well it’s from what is now Pakistan.

Hellenic South Asian Torso
Same with this headless dude.

And whose idea was it to put bird wings on mammals? Could the ancient Egyptians sue the ancient Greeks and Medieval Europeans for trademark infringement?

Egyptian Winged BeastGreek Harpy/GryphonHellenic Harpy/GryphonMedieval European winged lion

What derivations are transformative? Do we really want lawyers and judges determining what “transformative” is and is not? Do we want cultural progress dictated by the courts at all?

A copyright maximalist would say that this movie is uncreative, as though I used photos of old sculptures because I was too lazy to make my own. I didn’t use historical works because I’m lazy. But even lazy artists shouldn’t risk lawsuits, fines, and jail.

Or maybe the copyright maximalist would say this movie is creative, because I only photographed non-copyrighted works. But why should the legal status of the work I’m building on have anything to do with how “creative” my work is? The maximalist is working for the day when all works are copyrighted, and all culture is property. No longer shall anyone be able to build on works from the past, be it 5 minutes or 5 millennia ago.

Until that day arrives, I’ll see you at the museum.

Jesus Loop

Jack Valenti, former head of the MPAA E. N. Elliott

Jack Valenti: “We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape.” [1]

E. N. Elliott: “(W)itness…the existence of the ‘underground railroad,’ and of a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property….” [2]

Why do discussions of Free Culture trigger such strong emotional response?

People hold very strongly to ideas about the meaning of property. Jill Lepore, in a New Yorker Article called “The Politics of Death” (Nov. 30, 2009, p. 62) writes:

life, liberty, and property are the rights that Americans talk about, and fight over….Taking a long view of American history, it’s possible to argue that each of these rights has led to a fracture in the body politic, a dispute in which there seemed no room for compromise. …a swirl of disputed ideas have gathered around each of these contested rights. But, from one era to the next, the ideas have been different.

Lepore’s article concerns itself primarily with “life” politics: “…in the past half century, Americans have been fighting over the right to life.” But immediately prior to that statement lies this rich, enlightening paragraph about historic changes in Americans’ ideas about property:

In the nineteenth century, Americans worried about a conspiracy against property — a property interest in people. In 1820, the Missouri Compromise, which prohibited “this species of property” north of the thirty-sixth parallel, divided the country in half. Jefferson called it a national “act of suicide.” Four years after the Compromise of 1850 redrew the line between slave and free states, Abraham Lincoln wrote that the framers had forborne “to so much as mention the word ‘slave’ or ‘slavery’,” which left the disease festering in the body politic….in 1857, in Dred Scott v. Sandford, the Supreme Court ruled that the framers had intended to define the “negro race” not as people, but as property, to be “bought and sold and treated as an ordinary article of merchandise.” Slave owners feared an abolitionist conspiracy, “a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property.” In 1859, John Brown’s raid at Harper’s Ferry realized those fears. On the floor of the Senate, Jefferson Davis made a threat: “If we are not to be protected in our property and sovereignty, we…will dissever the ties that bind us together, even if it rushes us into a sea of blood.” The following year, South Carolina became the first state to secede, citing as its reason the federal government’s failure to honor its “right of property in slaves.” The contested right to property led to the Civil War, and six hundred thousand dead.

Discussions of Intellectual Freedom and Intellectual Property dance around this cherished American right: property. (That said, the term “Intellectual Property” came into use only recently; the term was not used at all when the US Constitution was written.) Property is sacred. Ideas about property change slowly, violently, and fundamentally. Today we find slavery so morally abhorrent, it’s hard to believe that human property was a common, socially accepted institution less than 200 years ago. Property rights — even in human beings — were sacrosanct. People will fight to the death over not just property, but ideas about what property means.

Anything that challenges definitions of property can provoke heated, emotional responses — even from people with no direct stake in the property in question. I own no real estate, and probably never will, but like many I was outraged by Kelo v. City of New London, Connecticut:

“In Kelo, the Court said New London could take private property through eminent domain for the development of a hotel and convention center.”

To me and many others, it appeared the Government was undermining a fundamental “right to property.” Even as a non-property-owner, I care about what property means.

And so, statements like “Copying Is Not Theft” trigger an emotional response, even from those with no direct stake in Intellectual Property. Redefining property undermines social stability and can lead to widespread violence. Most people will tolerate certain unpalatable definitions of property (that human beings can be property in the case of slavery, or that culture and ideas can be property in the case of IP) in exchange for social stability, because social stability underlies everyone’s security.

But don’t tell that to a slave.

I hear this a lot:

“IP is problematic, but the decision to free works should be the artist’s choice.” [3]

Legally artists DO have the right to choose whether to release works freely or place copyright restrictions on them. So we don’t need to discuss “should.” The nice response is to say, “yes they have that choice, and therefore I wish to present arguments in favor of choosing freedom.” Which I do.

But I can’t help imagining this argument in the early 1800’s:

“Slavery is problematic, but the decision to free slaves should be the slaveholder’s choice.”

As long as the discussion is about “owner’s choice,” we don’t have to question how we define property.

Free Culture activists fastidiously avoid the “s-word”, even though the similarities are obvious and many, because invoking these comparisons triggers such high emotions that rational discourse becomes even less likely. And yet… “those who forget history are doomed to repeat it.” We stand to learn more about today’s struggles over “Intellectual Property” by studying historical struggles with human property. Because my audience is more level-headed than average, I’m going to explore some of these similarities here.

But first, let me clear out of the way the big difference between Intellectual Property and Slavery: cultural works aren’t people, and don’t have human feelings or rights. Owned cultural works aren’t comparable to human slaves. The argument against Intellectual Property is not that it enslaves works, but that it enslaves thinkers — audiences, artists, and all participants in culture (except the “owners,” who are harmed in other ways).

Now for the similarities:

Moral arguments

Moral arguments against slavery had been around as long as slavery itself. Although slavery diminished in the North primarily due to economic reasons, the US Abolition Movement was rooted in moral argument.

Likewise, moral arguments against patents and copyright have been around since the advent of those institutions. In 1813 Thomas Jefferson argued eloquently against what we today call “Intellectual Property”:

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

In 1841, speaking to the House of Commons, British poet Thomas Babbington Macaulay argued against extending copyright terms:

…even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor.

I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.

It’s a great essay, just as relevant today in its moral arguments.

Its economic arguments are less relevant, as it was written 150 years before the Internet. Macaulay could only conceive of “two ways in which (authors) can be remunerated. One of those ways is patronage; the other is copyright.”

He went on to dismiss patronage:

I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Ironically, copyright has led to exactly the same problems as the patronage system he described. The modern “minsters and nobles” are media executives. Copyright, instead of curing the evils of the patronage system, grew to reinforce them.

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.

If only he knew! All the vices of monopoly, plus the vices of patronage too.

Technological and Economic Changes

Today the Internet offers a third option: micropatronage, the ability of masses of fans to support artists directly. It relies on no monopolies, and fulfills democratic ideals that old patronage and copyright never could.

In the pre-bellum North, mechanical industrialization, especially of agriculture, reduced the economic incentive for slaveholding. Immigrant labor also changed the Northern economy, making slave systems less profitable. Northerners didn’t abandon slavery because they were morally superior to Southerners, but because of economic and technological changes.

Just as farm machinery lowered costs and increased efficiency in agriculture, digital devices have lowered costs and increased efficiency in production and distribution of cultural works. Musicians, artists and authors are beginning to discover their works are more profitable shared through the internet, than distributed centrally. A few economists are pointing out that free sharing of cultural works increases profitability for artists and overall wealth. They avoid moral arguments, focusing on rational market incentives. [4]

Resistance to Control

Most histories of American slavery explore changes in white attitudes. But black slaves always struggled for freedom, regardless of white political trends.

Today we argue whether “Information wants to be free.” Unlike human beings, information lacks feelings and agency. But both human property and Intellectual Property tend to resist control. Slaves somehow got through fences and borders, in spite of property laws. Modern IP owners express the same shock and indignation as pre-bellum slaveholders when their work “gets out.”

Runaway Slave Piracy.  It's A Crime.

Assisting in the liberation of human property was a Federal crime.

Unauthorized sharing of “Intellectual Property” is a Federal crime.

Underground Railroad and “Pirates”

“The Underground Railroad was an informal network of secret routes and safe houses used by 19th century Black slaves in the United States to escape to free states and Canada with the aid of abolitionists who were sympathetic to their cause. [5] The term is also applied to the abolitionists who aided the fugitives.” [6]

Under the Dred Scott decision, “liberating” slaves was illegal. From today’s point of view, the Underground Railroad didn’t “steal property,” but from a slaveholder’s perspective there was no distinction.

Today we have file-sharers, copyists, and copyright infringers, all generally termed “pirates.” There is a moral incentive to “liberate” cultural works through digital sharing [4], but to IP owners this is simply stealing property. Punishment for assisting the “liberation” of IP is severe, just as punishment for aiding fugitive slaves was.

Increasing Penalties

…the Fugitive Slave Act of 1793…made it a federal crime to help a runaway slave.

Punishment in the North for white people and free blacks who assisted in escapes was originally not as harsh — typically a fine for the loss of “property” and a short jail sentence that might not be enforced. But in 1850, penalties became much steeper and included more jail time. Whites who armed slaves, which was often necessary along the dangerous route, could be executed. In the South, anyone — white or black — who assisted a fugitive could face death.[7]

Likewise, punishments for unauthorized copying have grown increasingly severe. In some places, such as France, there are “three strikes” laws that would shut off a person’s Internet access if they are caught illegally sharing three times. In the United States, the Digital Millennium Copyright Act of 1998 increased the penalties for copyright violation when the violation takes place on the Internet.

Arbitrary Grab-Back

Like copyrights, title to slaves and their descendants were heritable to slaveholder’s descendants:

Oney Judge was interviewed by Rev. Benjamin Chase, and he published the account in a “Letter to the editor” in The Liberator of January 1, 1847. He discussed the fact she could be seized at any time, even 50 years later if Martha Washington’s descendants decided to make a legal claim.

Today, we have countless stories of authors’ descendants claiming copyright infringement, such as Martin Luther King’s kids [8].

Proliferation & Control

As slaves proliferated, their sheer numbers made them more difficult to control. Although all slave rebellions that took place on American soil were suppressed, they required enormous manpower and force to do so. Keeping human property grew increasingly expensive. Meanwhile, the more slaves proliferated, the less the problems of slavery could be ignored. The Government had to become increasingly involved with writing and enforcing slave laws — laws that benefited the few slaveholders at the expense of the many citizens. An ordinary citizen might be willing to ignore his neighbor’s keeping of slaves, until it cost him money.

Today we see a proliferation of information. More cultural works are circulating than ever before. Copyright was much more manageable when there were few authors and fewer printing presses. Today almost everyone is an author, and digital “printing presses” — computers — abound. All that information is hard to control, and the more it proliferates, the more expensive copyright becomes. IP owners must buy congressmen to write ever-more draconian copyright laws, and get taxpayer money to enforce them. As the enforcement of irrational laws sucks up ever more public resources, the public may start to wonder whether the cost of “owning” is worth it.

Big Cotton / Big Content

The big stakeholders in slavery were large plantation owners. Small farmers and industrialists had little use for it, which is why slavery was abandoned earlier in the North. In the South, “…slave ownership was becoming concentrated in fewer hands. Whereas a third of southern whites owned slaves in 1850, a decade later the proportion had dropped to one-quarter. “The American Cotton Industry relied almost exclusively on slave labor, and much of the world’s commerce relied on American Cotton [9]. Hence an 1860 pro-slavery essay collection was backed by Cotton interests and titled “Cotton Is King”.

Today, as Big Media corporations merge, IP is increasingly concentrated in the hands of fewer and fewer “owners.” Like Big Cotton before it, Big Content supplies most of our pro-IP propaganda, as well as legislation. [10]

Burden of Documentation

The laws of slave states assumed all black people were slaves. You didn’t need documentation to prove you were a slave; you needed it to prove you were not.

Likewise, modern US copyright law assumes all cultural works are property. Copyright registration is optional; all works are property by default. It is free cultural works that require documentation, not copyrighted ones. All cultural works require extensive documentation to move through mainstream distribution channels; it is never, ever assumed they are free. Cultural works without documentation are called “Orphaned Works,” and not free; great effort is devoted to finding their “rightful owners.”

Political Movements

Abraham Lincoln Swedish Pirate Party ballot

“…a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property…” The Republican Party was founded in 1854 by American anti-slavery activists and modernizers, and first came to power with Abraham Lincoln’s election in 1860.[12]

“…a party in the North…” Sweden’s Pirate Party was founded in 2006 by Swedish copyright reform activists, and first came to power in the 2009 European Parliament elections, winning two seats.[13]



According to E. N. Elliott, in his introduction to “Cotton Is King and The Pro-Slavery Arguments” (1860): “Slavery is the duty and obligation of the slave to labor for the mutual benefit of both master and slave, under a warrant to the slave of protection, and a comfortable subsistence, under all circumstances.”

Slavery “protected” slaves. (From what? Other, less kindly slave owners?) In this way, slave owners provided a benefit to the humans they owned, taking care of them. This implied that human slaves couldn’t survive or thrive without being owned.

Likewise IP is called “protection.” Record labels claim to protect and nurture “their” artists. Cultural works are considered helpless without distributors and publishers to “manage” their rights. Corporations that own monopoly rights to artists’ output portray themselves as nurturing, protecting, and necessary.

“Property” vs. “Rights”

Owning human beings and ideas is hard to defend; owning all the money they generate is more palatable. E. N. Elliott stated: “The person of the slave is not property, no matter what the fictions of the law may say; but the right to his labor is property, and may be transferred like any other property…”

Likewise modern apologists for IP explain the works themselves are not property, but the right to use them are.

Critique of Abolitionists

Like today’s Free Culture reformers, yesterday’s Abolitionists were called communists, extremists, fanatics — and in the case of the latter, heretics:

The agitation of the abolition question had commenced…under the auspices of the Red Republicans…and by anti-slavery missionaries it had been introduced into our Northern States….

(We) discussed (slavery) not only in the light of revelation and morals, but as consistent with the Federal Constitution and the Declaration of Independence; until many of those who had commenced their career of abolition agitation by reasoning from the Bible and the Constitution, were compelled to acknowledge that they both were hopelessly pro-slavery, and to cry: “give us an anti-slavery constitution, an anti-slavery Bible, and an anti-slavery God.” To such straits are men reduced by fanaticism. It is here worthy of remark, that most of the early abolition propagandists, many of whom commenced as Christian ministers, have ended in downright infidelity. [11]

The rhetorical similarities go on and on; the above represents but a sample.

The very existence of institutionalized slavery in the U.S. goads us to question how it was possible, and ask ourselves how we would have behaved in a slave society. What would we have done if we had been slaves? Would we have risked our lives to gain freedom? What if we had owned slaves? Would we have freed them? Would we have risked our own safety to help the enslaved gain freedom? Or would we have labeled antislavery activists as extremists, as excessively sentimental, irrational, and emotional? Would we have maintained the status quo, or tried to change it? How much would we have been willing to risk to do the right thing? These questions should haunt us. We can’t go back in time to find out, but we can look at ourselves today and wonder, How will the future judge us?








[7] and

[8] See and especially this comment.





This presentation is a “first-quarter” report about the Free Distribution of Sita Sings the Blues. It was hastily written July 31 for a conference the next day. Please read about our business model. As of this writing (August 5, 2009) the numbers remain approximate and incomplete. The store has actually grossed $34,883.00, but some of those sales are for merchandise; sales of QCO’s “standard edition” Sita DVD are split between me and QCO, and so aren’t fully reflected in this report. In other words, store income in this report is reported conservatively — some numbers should be higher, but Karl Fogel (who manages the store) hasn’t had a chance to do the full accounting yet, so these will have to do. Also, I failed to include income from indie cinemas like Central Cinema in Seattle. Those probably amount to $3,000 to $5,000. Even the conservative numbers in this report reveal an important truth: I am making money with my “Free” content.


Author: Nina Paley

Film Web site:

Further information: The Sita Distribution Project at


Presentation Slides

(Translations: Polski.)

Nina Paley

Nina Paley is the author of the freely-licensed hit animated film Sita Sings the Blues, among many other things, and is Artist in Residence at She is also a committed Free Culture activist who writes frequently about copyright and how the permission culture affects art and artists.

This phrase comes up in many discussions of copyright: “Artists should be compensated for their art.” It is assumed that a) Artists are inherently entitled to monetary compensation for their Art, and b) copyright is a mechanism for this compensation.

I challenge both assumptions.

Of course, what people actually say is usually “Artists should be compensated for their work“. Below I’m going to distinguish between Art and Work, because confusing the two is exactly the problem.

a) Artists are inherently entitled to monetary compensation for their work.

I agree that artists are entitled to payment FOR THEIR WORK.

WORK is labor exchanged for money. Employer and worker negotiate a fee, the labor is performed, and the worker is paid. Many artists are workers: they are waiters, baristas, truck drivers. They should be compensated for their work, and they are, which is why they work.

Some artists perform a kind of skilled labor for money. This type of pre-negotiated labor is called a commission. Commissioned work is work, and artists are compensated for it, which is why artists take commissions.

But artists are not inherently entitled to monetary compensation FOR THEIR ART.

Art is a gift. An artist creates Art (not to be confused with skilled labor) on their own initiative. An artist “labors” in service of their vision, their Muse, the Art itself. The Muse alone is the Artist’s employer. It’s debatable whether the Artist can negotiate with their Muse before performing the labor — I certainly try to — but like most labor, terms are dictated by necessity. Just as economic necessity forces many workers into hard labor for low wages on their employer’s terms, so does suffering force many Artists into labor on the Muse’s terms. But unlike corporations and human employers, the Muse turns out to always have the artist’s best interests at heart. I’d much rather serve the Muse than an employer; but the Muse doesn’t negotiate a moneyed wage. Monetary compensation is not part of the deal.

The Muse “pays” me in Life. “Do this,” she says, “and you will Live. Turn away, and at best you will only survive.” I do have a choice: I can make the Art, or not. I accept the Muse’s terms. I perform the labor, and receive my “payment”: Life.

ART is negotiated with the MUSE. The “payment” is LIFE.
WORK is negotiated with an EMPLOYER. The payment is MONEY.

If artists want to be paid in MONEY, they should negotiate a fee before performing their work. That is the proper condition for payment. Or they can create work with no pre-negotiated payment, without demanding payment after the fact. That’s fine too. But to then demand payment after voluntarily working on your own terms — that is extortion.

Consider the Squeegee Man. He wipes windshields unbidden, then demands payment. He did the work; does he “deserve to be compensated”? Most would say no; if we wanted our windshields cleaned, we would negotiate this service in advance.

If I decide to sit behind a desk, take calls, devise flawed business plans, and lie, do I DESERVE to be compensated like a bank CEO? No. The bank CEO’s work was pre-negotiated. He gets $25 million in salary and bonuses because that was the deal BEFORE he sat down at his desk and did the work.

Does the bank CEO deserve his compensation? Well, most people are questioning that right now. I’m surprised it’s taken a massive financial crisis for that to happen, but at least folks are asking.

Since we’ve been in a massive artistic crisis for decades, maybe people have given up on asking whether the top .5% of artists deserve their monetary compensation. If I sing and prance around on stage, am I entitled to $110 million a year? It’s the same work Madonna does, and that’s what she makes. But Madonna arranged to be paid in advance of the singing and prancing, and performed it as work.

And if artists deserve to be compensated, then how much do they deserve? Isn’t art priceless? How do you determine how much it’s worth?

We could let the market decide. That could work… IF WE GET RID OF MONOPOLIES. The Free Market only works without monopolies. Information monopolies like copyright destroy that system. I’m all for allowing the Free Market to function, but it can only function without copyright.

Indeed, Madonna is not compensated as an artist; she is reaping profits from her information monopoly — that is, the copyright that restricts her Art. So if Madonna is your model, you aren’t rooting for artists; you are rooting for monopolists. If your mechanism for “compensating” artists requires them to become monopolists and to grow and position their monopolies as monopolists do, then you are championing monopolies, not Art.

Art is not a commodity, it is a gift. If you want to produce a commodity, negotiate its worth in advance. Art is made on the initiative of the artist. Otherwise, it’s commissioned work, which obviously compensates the worker. But the the commissioner is often a corporation or investment group, who will expect a monopolist’s return on their investment. So the pro-copyright argument is simply in favor of maintaining the oligarchy whose elites happen to be the main patrons of art in our age. It’s like supporting monarchies because kings and queens patronize artists.

This may be hard to hear, but: many artists who claim they just want to eat and pay rent are lying (perhaps to themselves). Most artists don’t want a living wage — they want to win the lottery. Suggest to most filmmakers and musicians that “success” is about $75,000 a year, and they’ll turn up their noses. You call that a jackpot? They’re only in it for the millions, baby. If that means working a day job and remaining obscure, so be it. Millions need to be poor so that one can be rich; they’re willing to do their time being poor, so that one day they can be rich at the expense of others. Their turn will come, they think.

I suggest playing a different game entirely, because the lottery is a tax on people who are bad at math. But those kinds of artists want to play the lottery more than they want their art to reach people.

I do not mean to suggest that all artists have this attitude. There are also those who would be quite happy with a living wage; this is good, because that’s a much more realistic expectation for even a very talented artist. The problem is that our copyright discourse is dominated by the lottery attitude, such that when people say “Artists should be paid for the work” what they really mean is “All Art should be monopolized, so that some Artists can have a tiny chance of maybe getting rich one day.”

The best way for art to “compete” in a “free market” is to flow freely. The Internet makes it easy for an artist to give their work to an audience. It also makes it easy for audiences to return the gift. Giving is quite different from paying or being extorted. Money given is different from money coerced. It is a free transaction.

Not everyone will like a particular work of art. I don’t think people who dislike a work should be obligated to pay for it. Certainly works that offend, nauseate, or bore me, don’t inspire me to support their creators. But works that move and inspire me also move me to support their creators. I am touched by the Artist’s love, and want to offer something in return. Money is an obvious choice: the Artist can almost certainly use it. But it’s not always the right choice. I’m moved by many Beatles tunes, but I’m not inspired to send a check to Paul McCartney. He doesn’t need the money (not to mention he’s a big time monopolist). However, money is almost always an appropriate gift for a non-rich (read: typical) artist. It will be appreciated, and it’s not so personal as to be disturbing or threatening.

The Internet makes it very easy for fans to voluntarily send money to artists.

It’s really simple. Art competes with other art on the basis of quality. The Internet allows it to spread, to reach as many people as possible. Those who enjoy it have an easy mechanism to give back to the Artist if they are so moved. Not everyone will be so moved, nor should they be. Not everyone has to like everything. Not everything can touch us.

In conclusion:

Artists are NOT inherently entitled to monetary compensation for their Art. However we as a society can decide to support the Arts. The problem with this is that 95% of the Arts sucks. Most of us don’t want to be supporting artists that suck, nor allowing government committees to determine what is and is not worthy of support. My NYSCA grant rejection and its attendant comments have taught me never to trust government arts agencies. I’ll gladly accept funds from them, but I’m acutely aware that they aren’t reliably competent to separate the wheat from the chaff.

The best way society can support the Arts is to allow Art to spread, and to continue to encourage giving money to artists. That seems pretty natural to most people anyway, and it doesn’t infringe on anyone’s freedom.

All creators get to decide what happens to our work. We can keep it secret, and not show it to anyone. We can keep it private, and limit access to private parties. Or we can make it public, by publishing it.

Once you’ve made a work public, it is public. So if you don’t want people sharing your work, please, please, keep it secret or private.

I’ve often wondered why “creators” (or corporations) get so upset when the public accesses their work, after they’ve made it public. If you can’t stand people looking at it without your permission, why not keep it locked up in a vault somewhere? No one’s forcing you to publish; why insist on doing so, and then claim to be victimized by your own audience?

The answer is that a work has little or no value unless it’s shared. The more people take it in, the more valuable it becomes. A work has no cultural value except what the audience gives it. In other words, A WORK’S VALUE COMES FROM THE AUDIENCE.

Sita Sings the Blues is tremendously valuable now, and its value increases every time someone watches it. Back when I finished the film in 2008, and hardly anyone knew about it, it wasn’t worth much. The very worst thing that can happen to a film is nobody sees it: that makes it worthless. Lots of people seeing the film make it valuable.

Artists make an enormous mistake when they believe a work’s value comes from themselves. Some of it comes from the artist. Most of it comes from the audience.

Most filmmakers get paid on the “front-end,” for their time (by investors, patrons, grants, etc.), and even with strict copyright and commercial distribution, make almost no royalties on the back-end. The audience isn’t paid for their time at all.

I contributed about 7,800 hours to making Sita. That’s a lot of time, and every hour I put into it makes the film more valuable. I conservatively estimate the audience has contributed at least 300,000 hours to Sita, probably a lot more. Every hour they put into it makes it more valuable too. They’ve put a lot more hours into it than I have, and I haven’t paid them a dime. Yet I enjoy attribution for the film, and all this value accrues to me! Sweet.

But if you still don’t believe that the value comes from the audience, and is instead inherent to the work itself, then by all means please keep your work safely locked away, and don’t publish it.

By Nina Paley and Karl Fogel

When the copyright industry lobbies for extensions to already-long copyright terms, they always present it as a way of giving the artists of the past their due — as a further protection of the “moral rights” that artists have in their creations.

But consider this: many artists of the past were forced to sign over their copyrights in order to work at all. They may have taken comfort in the fact that copyright would expire after a set time, and in knowing that people would eventually be able to share their work freely. Today, when copyright terms are continually extended, we should stop and wonder if these extensions go against the wishes of the works’ dead creators. Few artists of the 1920’s or 30’s had the option of saying, “I want people to share my work”, but they at least knew that copyrights would expire after 28 years — if the terms had been left alone, that is — and this may have made a temporary lockup more acceptable to them.

How many of those artists are rolling over in their graves now, as copyright is continually extended? Just because the Disney Corporation thinks copyright should be forever doesn’t mean the thousands of artists whose works are now locked up thought so, or would think so now. The fact that so many artists are adopting Creative Commons licenses today indicates that many artists believe otherwise. If artists have “moral rights” to their works, surely extending copyright terms without their consent violates those rights.