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Jillian McDonald and Creative Commons

Filed Under Art on 2008-10-10, 14:14

Zombies in Condoland - Pieces from Jillian McDonald, Scott Beale, and perhaps others

I post most of my images on Flickr under a Creative Commons Attribution-Noncommercial 2.0 Generic license. What does this mean? It means anyone is welcome to share my photos and even remix them as long as they attribute the photos to me and are not using them for commercial use. In addition, if you did want to use the photos without attribution and/or for a commercial purpose, you can contact me and I may waive those requirements for use. Chances are that if you’re an artist and “commercial use” means selling a couple prints, I won’t have any objections. But you have to ask first.

A good friend, Rubin Starset discovered that a portion of a photo taken by Scott Beale (of Laughing Squid) was being used by a Canadian artist (and Associate Professor of Fine Arts) named Jillian McDonald. She had digitally cout-out people dressed as zombies from photos that Scott had taken during one of the infamous San Francisco Zombie Mobs. She had also lifted zombies from photos taken by other photographers and it is unknown whether she had their permission or not. She then incorporated these photos into her own works, and at one point was prepared to sell prints of them.

Scott is an incredible photographer, and generously licenses his work on Flickr under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic license. This means you are free to share his photos (with attribution) as long as it is not for commercial use. Oh, but did you notice that “No Derivative Works” part? Yes, that means he is not giving you permission to remix or incorporate your photos into your own artwork. But, you could ask Scott for permission if you had this desire. Had Jillian McDonald asked Scott Beale for permission to use some parts of his photos, chances are he would have said it was fine, but Jillian did not. And to add insult to injury she was trying to sell prints using his work. She has since removed the page in question, but pieces of the photos are found elsewhere scattered on her site.

Perhaps I should just stop here and let the following open letter (posted on Oct 9th, 2008) from another friend, Aaron Muszalski, sum everything up:

Dear Ms. McDonald,

My name is Aaron Muszalski, and I am a San Francisco-based artist. I am also an Instructor at the San Francisco Academy of Art University, where I teach classes in digital compositing and visual effects. Prior to becoming an arts educator I worked at George Lucas’ visual effects facility, Industrial Light + Magic.

I am writing to ask why it is that, nearly a week after having been contacted by the photographer whose work you used as the basis for your “Zombies In Condoland” project, you have yet to take any apparent action. As you have no doubt been informed, those photos were placed on flickr under a Creative Commons license which specified the following:

Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

Noncommercial. You may not use this work for commercial purposes.

No Derivative Works. You may not alter, transform, or build upon this work.

Creative Commons (CC) is a grassroots attempt to update copyright laws to better deal with the new types of usage, distribution and re-mixing that digital technology have made so accessible. Where traditional copyright defaults to refusal, eg. “I own this work completely, and no one else can use it in any way without my explicit permission,” Creative Commons allows for nuance and openness, eg. “I own this work, but I’m happy to allow certain kinds of re-use provided certain conditions are met.”

One important thing to note here is that the very act of placing a work under a CC license is an act of generosity; from a content creator’s standpoint, it is far easier to simply assert copyright over one’s work. The very fact that an artist has chosen to use Creative Commons serves as a sign that They Are Not The Enemy; they are not a faceless media conglomerate who “doesn’t get it” when it comes to re-use. Rather, they are us, the content creators. Fellow artists, trying to find a sustainable middle path in an era of increasing conflict between corporations and advocates of open culture.

Such a brave choice deserves to be rewarded with consideration and respect.

In this case, that means respecting Mr. Beale’s request of “No Derivative Works”, something which your “Zombies In Condoland” images clearly are. The central elements of your composites are the photographed zombies themselves (instantly recognizable to any of us who participated in that event, and instantly recognizable as Scott’s photographs) not the backgrounds that you’ve placed them over. And even if this were not the case – say, if you had used fewer pixels of Scott’s photos, or processed them in some way as to be unrecognizable – you would still be in violation of Scott’s “No Derivative Works” license. The lack of attribution (citing the original artists who created the images used in your composites) demonstrates a further lack of consideration on your part.

The irony of all this is that, knowing Scott, had you merely contacted him in advance and provided a brief description of your project, he almost certainly would have consented to having his images used (provided you gave proper attribution of course). It is also very likely that he would have promoted the results on his highly-ranked blog, Laughing Squid. Many items listed on Laughing Squid subsequently get picked up elsewhere, including on such uber-popular sites like Boing Boing. All of this would have been very beneficial for your work. That you did not choose to ask permission makes me wonder: are you inconsiderate, or merely naive, and somehow imbued with the attitude that, “just because I found it on the Internet, I can do anything I want with it”?

Please understand: I am a strong proponent of open culture and creative re-use, and a strong critic of the ongoing attempts to extend copyright and consolidate corporate ownership of our shared cultural heritage. But to architect a truly progressive solution – one that doesn’t rely upon overpriced laywers and onerous legislation – we will have to embrace communication and consent between artists. In this case, Scott did not grant such consent, and you should respect that.

I hope that you will truly consider what I’ve suggested, and promptly revise your “Zombies In Condoland” series so as to remove all of the images you took from Scott’s photographs.


Aaron Muszalski

For the record, Aaron has let me know that Scott himself did not actually contact Jillian McDonald, but rather others have emailed with her.

Here are more photos in question:

There Goes the Hood - Jillian McDonald

And here are some relevant links:
Original post from Rubin Starset
Scott Beale’s original tweet and further discussion of the issue on Scott’s FriendFeed.
Jillian McDonald’s website
Jillian McDonald’s Zombie project page
Google’s cache of the photos on Jillian’s page that started it all