Making money on free art

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There’s no point in having a world full of “ethical" but unemployed artists. I think there is an ethical compulsion for people with talent to use their talent (artistic talent is power which carries responsibility). And, since making money at doing it is frequently a requirement for that to happen sustainably, then making money at doing your art is also an imperative.

Seen this way, we aren’t in a conflict between “ethics" and “making a living", we’re in a conflict between two ethical imperatives, and we must balance them appropriately in order to live ethically. Artists need to make a living, and excellence should be rewarded.

Before we knew of an alternative, the copyright sales business was the most ethical path available to most. But we now have technology that enables new business models which in turn enable a new production culture. Or so we believe.

If we’re actually wrong (as the existing proprietary culture dissemination industry apparently believes), then we’re in the wrong because our efforts at being “ethical" in terms of user freedoms are violating the imperative to create. However, if you’re reading Free Software Magazine, there’s a pretty good chance you don’t believe this, and I know I don’t. But this is the reason why those “pragmatic" arguments that so many people like to dis are important. We must prove the pragmatics in order to validate the ethics (or to put it another way, “the road to Hell is paved with good intentions"). Charity is a fine thing, but it’s industry that moves mountains.

If this new free culture is actually viable (which is a precursor for being ethical—if you believe as I do that not expressing your talent is “unethical"), then it should be able to prove it by sustaining itself. However, nobody expects an infant to pull its weight. The commercial success of free culture is retarded by competition from the proprietary production culture, which, from our point of view at least, does not “fight fair", but uses its existing success to promote its future success.

Cycles of Consciousness, a graphic arts concept sketch I did in 1990 with pen and layout markers. One of several works I’ve recently started to digitize. I hope to convert some of these to more editable and scalable formats, like SVG. In order to become relevant, free art will need safe zones or safe channels in which to flourish. (Credit: Terry Hancock / CC-By-SA 2.5).Cycles of Consciousness, a graphic arts concept sketch I did in 1990 with pen and layout markers. One of several works I’ve recently started to digitize. I hope to convert some of these to more editable and scalable formats, like SVG. In order to become relevant, free art will need safe zones or safe channels in which to flourish. (Credit: Terry Hancock / CC-By-SA 2.5).

The priority, in my opinion, is to establish “safe zones" (or “incubators" or “nurseries") in which artists can produce by free culture rules. There are at least two distinct types of such safe zones: ones designed to protect amateur production and ones designed to protect professional production.

Copyleft is the primary means of protecting amateur production. In the specific case of software, this turns out to have a professional side because software is often used as a means of conducting professional work, so refining it, even if it is not a cash center, is directly related to professional production. But works of purely aesthetic value lack this incentive.

Needless to say, there are important works that can be achieved entirely by amateur production. That’s essentially what made Wikipedia, for example.

However, for the “excellent few", the proprietary system of monetary reward, based on restrictive copyrights is still the best system.

And that means that we now have a system that preferentially locks away only the best works of our time. Surely that’s a bad deal from a public good perspective?

In order to construct a system more in tune with professional needs, we need a halfway zone. Incubators that encourage the production of free cultural artifacts. There are many ways to construct such incubators.

One important idea is “collective patronage". There are several ways you could do this. Some have suggested doing it at the level of national government programs. But, of course, it’s also possible to do it through certain kinds of business models.

Imagine, for example, a subscription “digital art channel" which permitted subscribers to evaluate works submitted, using, for example, a “favorites" or “Top 100" scheme. The same algorithm used for instant run-off voting could be used to convert this information to a global popularity index, which could in turn have a power-law distribution applied to it (maybe Pareto if you want to closely mimic the behavior of conventional markets). The resulting evaluation would then be used to divide a collective percentage of subscription sales among the contributing artists.

It’s possible to imagine other formulas based on “reads" or other automatically-collected criteria (such methods might be most appropriate for dividing advertising-based income). In fact, I would probably design a rather more complicated algorithm, and it might be something that would typically be considered a trade secret, much as the methods used by banks to evaluate loans.

Such a system would have a number of advantages in that it would reward artists according to an “objective" (or more accurately a “collective subjective") criterion, it would reward them on a smooth slope rather than on a plateau, so it would reward excellence much as a conventional art market does, and it would also be attractive to indirect funding, and it could generate wealth without restrictive licensing.

To be realistic, temporary semi-restrictive licensing (e.g. the Creative Commons’ “non-commercial" module) might be used to encourage subscription. This is exactly the sort of business model I see enabled by a sunset type of license.

Such a system would create a safe professional production zone mimicking the original US concept of copyright: a limited-time, limited-scope monopoly that sustains the artist in exchange for timely commission to the public domain (or more accurately, the free-licensed domain). In fact, this original US copyright system can be viewed as a collective patronage arrangement managed by the US federal government (which might be a good way to look at it: it makes it very clear why the current regime is so bad—it’s currently a very sub-optimal collective patronage mechanism because it serves the patrons so poorly, e.g. not giving them any free-licensed works until after they are dead!).

In my opinion, our task should be focused more on how to make our own system work and sustain itself rather than trying immediately to displace the existing system. Unlike free software, free culture has yet to acquire adequate safe zones to nurture a strong professional artistic production environment. Until it does, there won’t be much point in complaining about the problems with the existing proprietary professional production environment. The onus is on us to find viable systems and make them work. Safe zones, however they are implemented, are a way to allow such a system to coexist—perhaps for a long time—with the existing proprietary culture.


Copyright © 2006 Terry Hancock / Creative Commons Attribution-ShareAlike License (

Originally published at

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Scott Carpenter's picture

Great post--thanks, Terry. I think free culture can and will work also, but it is difficult to see how the transition will happen. There is lots of great free stuff out there now by people of varying talent levels, but how to adequately reward it, especially for the very best whose work we really want to enjoy?

I'm not as worried about incentive as some of the IP maximalists seem to be, but it is a factor. Talented, creative people will create in any environment, I think, but if someone can make their living from their art, they will produce more.

There needs to be a way to convert (earned!) reputation to reward for new works, so that if someone gained a large following and widespread recognition for their art, they could make their money up front. There are sites like that can act as mediators for collecting the money and paying the artist if the work is produced. (This would be available to everyone, not just the well-known, of course, but it seems less likely that you'd be able to raise a large sum up front as a newbie.)

There's the old question of micropayments, which I think will be a challenge to use effectively. There are a lot of good arguments about why they are ineffective and impractical, but wouldn't it be nice if you had a web site with 50,000 visitors per day and you could collect a penny from each of them? (Ah, daydreams...)

With micropayments there is the problem of people (myself included) preferring a flat rate. What if we had some kind of pooling mechanism. Let's say there are about 30 web sites that I read regularly and think they are substantial enough to support financially. I allocate $100 per year towards the sites as a group, and then we have a way to divide the money among the web sites based on the amount of time (or some other factor) that I spend at each. So if most of my time and attention is directed to 3 sites, they get a larger percentage of the money. If another site gains more of my interest, they get a larger cut, and so on.

Obviously there'd be the issue of gaming the system or outright fraud with these kinds of systems, but it could be worked on. I also see a lot of privacy issues with the possible accounting methods, but there are always privacy concerns and we can work on ways of making it work satisfactorily.

How would subscription methods work? If I'm in a pool of web sites with a common payment method, is our work only available to subscribers? That doesn't seem very free. Available to subscribers only for a period of time, say a week or month, and then to everyone? Again I'm not thrilled by that. I don't know if we can rely on enough people to voluntarily pay for free culture up front, but I really don't want to rely on any system that gives control to producers after the work has been published.

(P.S. I felt conspicuous when you highlighted pragmatic arguments and those who oppose them. Not that you were talking about me, but I have written about the importance of ideology over pragmatism, so I felt at least the edge of the spotlight. However, I agree that practical considerations are important. As you pointed out, free software has been shown to work, but free culture mechanisms haven't been proven yet, and it is up to us to do so. And from my post last week, I think we must do so.)


Terry Hancock's picture

"How would subscription methods work? If I'm in a pool of web sites with a common payment method, is our work only available to subscribers? That doesn't seem very free. Available to subscribers only for a period of time, say a week or month, and then to everyone? Again I'm not thrilled by that. I don't know if we can rely on enough people to voluntarily pay for free culture up front, but I really don't want to rely on any system that gives control to producers after the work has been published."

Note that with a "sunset" license, the producer is not "in control" of the licensing terms after publication: the work becomes free at a specified date and they can't change their mind (because they've already agreed to the license -- it's just post-dated). It would simply "flow" from the proprietary to the free commons on a pre-defined time table.

The problem with "up front" payment methods is that they don't provide any kind of assurance of quality or reward for excellence. If a work is better than expected, the artist receives no extra benefit for that; if it is poorer, then the patron has overpaid. Thus there is no market force to select and promote artistic excellence.

The only real exception to that is in the case of series works (and producer loyalty which is much the same thing). Quality works get greater reputation, and artists (or series) which are consistently good might see a gradual increase in funding.

However, a competitive free market is probably better.

I don't feel that a sunset licensing scheme is better than a free license from the patrons' point of view: clearly you're better off with something like By-SA, but that's getting back to amateur production.

Currently, there is one very popular license which attempts to protect professional production while being somewhat "free", and that is the Creative Commons' By-NC or By-NC-SA. The business model of companies like Magnatune is based on this license.

However, the By-NC is a very non-free license in the sense that most free software advocates mean. It chokes off amateur production, because it kills the primary means of sustaining it (almost everybody is at some level a "commercial" user. Having Google ads on your page is enough to disqualify you from distributing NC works!).

Because of this, the sharealike (SA) module in By-NC-SA is basically a joke. There's really no point. If you're going to use NC, you might as well use the "ND" (non-derivative) license, because you won't get significant collaboration. NC works simply do not "feed the commons".

So I see the need for a halfway license that works in a different way, so that it does feed the commons. And the only way to do that that I can see is to work on the "limited times" rather than the "fair use" aspect of the copyright license. So, instead of limiting use to non-commercial users, give yourself a little time to make money off of people who want to see your work early, then release it under a real free license. That way, the work follows a guaranteed path into the commons, which makes it attractive to people who are interested in commons-based values (i.e. they might want to derive something from it).

In fact, of course, the two would work nicely together: the NC license that Magnatune uses is fine for simply downloading and listening to music. It's only when I'm looking for tracks to included in a free software package that I get seriously disappointed (How much for a commercial license?!).

So I see a system of licenses that release a work immediately under a By-NC-ND license, with an extra By-SA license (or By) that applies after a specified period from publication: I was thinking of standard intervals of 1 month, 3 months (1 quarter), 1 year, 3 years , and 7 years. Since the actual license grant is made immediately upon publication, the producer is not in control (they can't revoke the license any more than they can with the immediate license), but the terms don't actually apply until a specified date.

Note that you don't actually need to write new licenses to implement this. What you use is a "license grant statements" or a "superlicense" that refers to the two licenses. Of course, for convenience, one could make these superlicenses available as boilerplate.

In my opinion, works licensed this way would be much "freer" than works licensed under a "non-commercial" regime, and would serve many of the same purposes.

Note also that, since the primary value of the commons is to derive new works from old, it's mostly "old" works that the licensing matters for: you may want to listen to "today's tunes", but it's really the "goldie oldies" that you're going to want to remix.

Our copyright regime is supposed to do this already, but it's broken, because 80+ years is just way too old to be relevant, even for remixing (there are exceptions, of course, but not many). These long delays, plus the fact that the delay keeps getting longer has led to an incredible stagnation of the public domain, which starves new derivatives.

I was reflecting on this recently when I was reading Heinlein's juvenile SF works from the 1950s: particularly The Rolling Stones. This work is well written, and a lot of fun to read, but it's getting extremely dated. I could imagine a project to produce an annotated version with updated science and technology notes. It'd be particularly interesting to note where Heinlein was accurate (even prophetic) in his predictions and also where he failed utterly (in brief, he was pretty sharp on the evolution of rocket technology, but woefully inaccurate in materials science and computer science).

When these books were written, Heinlein's motivation was a copyright that would last for 28 years plus an optional 28 year extension. Even if he extended it, therefore, it would have expired in 2006, so I would be able to do that project. However, in 1978 the copyright was changed retroactively to "life + 50", which put the expiration in 2038. Now, after two or more extensions, I believe the expiration is in about 2068. By then, my project would become sort of pointless (not least because I'll most likely be dead).

Looking at this sort of problem, it seems to me that licenses that effectively reduce the term of restrictive copyright licensing would have a definite niche.

This idea, of course, is similar to Creative Commons' Founder's Copyright, but the Founder's Copyright is badly implemented. A delayed free license is a much simpler solution.

Mind you, there are other ways to encourage subscription. If you funded such a program with tax money, as some have suggested, then you are effectively forcing everyone to subscribe (I'm not too happy with that idea myself), or you can simply distribute free-licensed works, but only to subscribers, relying on the delay caused by natural network delays to protect your subscription base (i.e. it's just more convenient to subscribe than to try to hunt the web picking up freebies).

So, there are models without the sunset license approach, too.

And, no Scott, you're not the main person I was thinking of when talking about "dissing pragmatic arguments". There are plenty of other people who do that. I understand where they're coming from, but I think you have to realize that pragmatics matter, even from an ethical perspective: what's right and what's wrong are highly dependent on predictable outcomes.

From a first-principles "ethical" approach I might argue that I should be able to drive my car anywhere I want (any restriction violates my freedom!), but in reality the picture is very different if "anywhere I want" happens to be through your car (or house, or lawn...). Likewise, throwing waste products into the environment might seem "unethical", but it really depends on what they are and what harm they might do. Predicting outcomes requires "pragmatic" analysis.

This is made more difficult by the fact that people who value "economic success of the society" don't always realize that that's what their worldview implies. So they often have difficulty communicating in "ethical" terms. Likewise, "ethicalists" actually make many pragmatic assumptions (e.g. that you need source code to be able to modify software) which they are often unconscious of making.

I view these conflicts primarily as semantic: every "pragmatic" argument can be expressed in terms of "ethics" and vice-versa. People who prefer pragmatism can always demonstrate that our "ethics" arise from a need to meet certain pragmatic necessities of society (and hence individual dependent on that society), while all "pragmatic" arguments can be reduced to meeting necessary outcomes to attain "ethical" imperatives. This is why I reject the whole issue as a false dichotomy.

Scott Carpenter's picture

Lots of interesting thoughts and plenty of potential followups, but just re your comment about Heinlein's take on computer science, it reminds me of my earliest SF experience with his work. My dad was (and is) a big SF reader and always had books laying around. One day when I was about 12 (the golden age of science fiction!), I picked up Red Planet and realized I could follow it enough to enjoy it. I wondered what a "slide rule" was supposed to be, and quickly determined from context that it must be some futuristic gizmo. This would have been 1982. :-)


Terry Hancock's picture

1982 is about when I first learned to use a real slide rule!

We were required to learn it in high school. The slide rule is actually a really cool device, I don't regret learning it at all. It makes it extremely clear why logarithms needed to be invented.

Red Planet was actually the first novel I ever read. I think I was about 8 at the time. I still have my original paperback copy, though it's awfully worn by now.

Still, it is pretty funny reading about people figuring trajectories with slide rules and pencils when a computer capable of solving the entire navigation problem can fit in your hand and run on less energy than the light it takes for you to read the output.

More subtlely, I was intrigued by the idea of "trim weights" i n Rolling Stones to get a spacecraft to exactly match the mass used in the trajectory calculations. Today, we would regard this as wasteful: it'd be more efficient to recalculate based on the exact weight (Heinlein was assuming that this would require the job to be sent off to a central batch-processing computer on the ground, instead of something you could trivially recompute with an onboard computer).

Makes you wonder what we are discounting, doesn't it?

Author information

Terry Hancock's picture


Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.