Fare use.

Recently I purchased my first digital camera, which I plan to use as most consumers presumably do, to capture those Kodak moments more conveniently. So it was a surprise, when I opened the operating manual, to discover that the first thing Pentax wanted me to know was not how to install the memory card or how to set the light meter, but this: "Images taken using the Optio S40 that are for anything other than personal enjoyment cannot be used without permission according to the rights as specified in the Copyright Act. Please take care, as there are even cases where limitations are placed on taking pictures even for personal enjoyment during demonstrations, industrial enterprise or as items for display. Images taken with the purpose of obtaining copyrights also can not be used outside the scope of use of the copyright as laid out in the Copyright Act, and care should be taken here also."

Huh? This is a challenging text, even for a lawyer. So far as it purports to address copyright, however, this statement is unlikely to communicate much to general readers--most of whom haven't studied the Copyright Act--other than the warning that taking pictures is a riskier business than one may have realized.

To make matters worse, at least some of the content of the text is flat-out wrong. Take the first sentence. In fact, there are many circumstances under which images made for reasons other than "personal enjoyment" may be used without permission, for example in news reporting or political commentary, just as it may be entirely legal to quote copyrighted writings without the author's approval, notwithstanding assertions to the contrary by presses that certainly know (and ought to act) better. By denying the fundamental copyright doctrine of fair use, notices such as these both misrepresent the law and support the assumption that images and words are always owned.

OK. Typically, they are. Indeed, life in our licensed culture has begun to feel natural, and it must be said that it's not all bad. In the music industry, for example, compulsory licensing has been the norm for decades, and despite ongoing debates over sampling, not too many creators are interested in discarding that arrangement.

More recent developments are troubling, though. Film and television producers have adopted E & O ("errors and omissions") policies requiring that permissions be obtained for every inch or pixel of borrowed footage, regardless of whether or not the use in question is "fair." Publishers today routinely require authors to indemnify them against claims of infringement. Realistically, this means that a historian publishing a book on visual culture in this century is taking her chances unless she illustrates her work only with images for which the rights can be obtained. Because copyrights do not have to be registered (and often are not, until an owner decides to seek the statutory benefits potentially available in an infringement action), it isn't always possible to find their presumed owners--who at any rate can always say no to the reproduction of any given image.

But while many visual artists license the reproduction of their work through organizations such as the Artists Rights Society (and some artists, or their estates, even maintain successful merchandising programs), new visual art is not created--not yet, anyway--using the existing licensing models of music, film, or publishing. Historically, visual artists have not obtained permission to use the images they borrow, and today, in general, they still don't, for a variety of reasons. Significantly, however, the same technologies that today enable many of these appropriations also greatly increase our awareness of them. Enter counsel.

Responding to the high cost of defending fair use, and in the context of a shrinking public domain, a number of commentators have proposed the establishment of some form of compulsory licensing for works of visual art. In the music industry, compulsory licensing guarantees, for a reasonable fee, the availability of copyrighted material for use by others, even when the original creator would not of her own accord have granted a license. Unfortunately, this model does not transfer well to the art world--and it would be adopted only at a cost.

Consider one of the more detailed proposals, from art lawyer Judith Bresler. Under Bresler's "fine art license," an artist would pay a set, floor amount for borrowing from a registered work of art--for a single use, one thousand dollars. Upon selling her subsequent work, the artist would pay, in addition, a percentage of the revenue to the owner of the source image, who could also choose to be credited on the work and would still retain copyright with respect to any third parties. Say Damian Loeb paid for a license to borrow a registered image of Tina Barney's. Barney could still go after any other artist who used the image without paying, even if that third artist's source was the Loeb work, not Barney's. Under Bresler's scheme, Loeb would also have no right to make "derivative works" based on the work he had created--no variants or versions, not even a poster or postcard. Avoiding litigation sounds great, but serious problems are obvious, not least the fact that many artists use too much borrowed imagery (likely to be derived from "non-art" sources) and sell too little work to make this plan economically or administratively feasible.

One interesting feature of Bresler's proposal, however, is that it exposes what copyright-law scholar Jessica Litman has called the "legal fiction" of originality. As reams of case law make clear, it is often quite hard to distinguish what is truly protectable in any given work. Originality under the law is not necessarily the same as the originality we celebrate in the arts. It's rare that an author can claim full "ownership" of her work in the latter sense. Andy Warhol admitted to basing his "Flowers" paintings on a photograph by Patricia Caulfield, but it's no insult to Caulfield's work to note that she did not originate the genre of floral still life or the conventions of nature photography.

Bresler's plan would require a license for any "recognizable likeness." As she acknowledges, this would undermine "transformativeness," an important test for fair use. That concedes far too much. Until all culture is safe for fair use, let's not remove any canaries from the mines.

There are other options. Let's return to connoisseurship and broaden appreciation of the differences between works of visual art. To say that Cory Arcangel's work is "subversive" because he doesn't have "a deal with Nintendo," a comment I overheard at Arcangel's recent Deitch Projects exhibition, doesn't begin to exhaust the work's interest.

In recognition of the fact that culture is a shared enterprise, those creators who have chosen to make their works available under the alternative licenses sponsored by the nonprofit public domain advocate Creative Commons are modelling a system in which copyright owners may choose not to claim all of their exclusive rights "as specified in the Copyright Act." Many owners like the idea. According to Executive Director Glenn Otis Brown, since Creative Commons made "flexible" copyright a viable option, in December 2002, more than five million individual works--images, texts, music, film--have been posted on the Web, with links to notice of the permissions given by their owners, in advance, to potential users of the works. Not every work is available free of restrictions (or of charge); that isn't the point of flexible copyright. And of course, it is not immediately clear how this digitally based system might be applied in real space. No matter. For this moment, it's the big idea that is needed.

To visual artists, this shouldn't seem so novel. History demonstrates that creativity was somehow incentivized before intellectual property rights as we now know them developed. A lot of historical art could actually be characterized as "open-source." Weaker copyright, or stronger fair use, would no doubt produce a different music or movie business, but it is plainly absurd to say creativity would disappear. The question is not whether to pay creators, but when. "Always" is looking a little greedy.

Virginia Rutledge is an art historian and attorney. (See Contributors.)

Creative License examines trends in intellectual property and the arts.