Is Photography Ready for Compulsory Licenses?

In the world of music in particular, there has long been in place a system of compulsory licensing. That is, anyone who wishes may create, record, and sell a recording of a song or other piece of music without the permission of the copyright holder provided that they pay a fee to the copyright holder. A whole system exists to move that money around. This has enabled broadcasting, as well as much of the modern music industry. It was designed, I gather, specifically to break up the possibility of a corporate monopoly on recorded material.

Also, I suspect, it was simply intended to regularize what was already happening. You cannot prevent people from learning and playing a song. The better ones might record their version. You can run around punishing them piecemeal, or you can (as Congress elected to do) simply grant everyone a compulsory license and require reasonable fees to get paid.

A knock-on effect of this has been bring the normal course of a musician's development in under a legal umbrella. Kids with guitars start out, inevitably, playing covers of their hero's songs. They play gigs. They learn and develop their craft, and eventually graduate (sometimes) to writing their own material. This is normal, and with the system of compulsory licensing, it is also legal, and fair.

These days we're seeing three trends that seem relevant.

First, since the advent if the <img> tag on the web, there has been a great deal of appropriation going on from the highest levels of fine art (Richard Prince, and many others) all the way down to instagrammers stealing one another's pictures. This is reality, there seems to be no putting that cat back into any kind of a bag of any sort. Sometimes, not always of course, but sometimes there appears to be some legitimacy here. Not legal as such but reasonable in some sense. Some kid is learning photoshop, a talented artist is making a serious statement. Neither of those are something we ought to be suppressing, but the original photographer has rights as well.

The second trend is the consolidation of stock agencies. We're not very far away from a world in which your choices for acquiring imagery are: the sole remaining microstock agency (whichever one that is), hiring a photographer to create original work, or stealing it. This is exactly the scenario compulsory licensing for audio recordings was intended to prevent.

The third trend is the ever-increasing "do it for exposure" business model, which is driven in part because photographers often lack a convenient way to bill, and have little to no experience pricing their work.

With a compulsory licensing scheme, the world shifts radically. Anything online can be downloaded, used, remixed, republished, as long as you pay the fee, and supply the credit.

The boring and stupid legal cases mostly go away (this puts Richard Prince out of business, because his art isn't remixed photos it's lawsuits). Getty Images collapses immediately.

Theft of imagery goes down, because the process of paying a fee is easy and inexpensive, and the penalties are more organized. Rather than trying to hide behind a half-baked fair use defense, commercial or other uses would simply pay the fee. Photographer earnings go up.

Are there technical details to be worked out? Yep. There are also legal ones, the Berne Convention seems to call out audio materials for this type of licensing, but not visual ones. How do people pay? How do people get paid? I don't know, but I am confident that solutions can be worked out.

The music industry provides, not all the answers, but anyways a handy template.