It has been popular in recent years for photographers (professional and amateur alike) to publish their pictures of Trinidad and Tobago's various Carnival activities online, especially on social media sites like Facebook. But now, the Trinidad & Tobago Copyright Collection Organization (TTCO) considers this to be a possible copyright infringement:
‘If you take those photos and post them on Facebook, what you have done is give someone the option of graphics,’ TTCO president Richard Cornwall told the Trinidad Newsday. ‘They can pull these images and compile them in a magazine which could then be used for commercial gain.
‘If that could be traced to your website page, you can be held accountable as the source for the act of infringement.’
However, Wired 868 doesn't consider such threats to be serious:
Whether anyone takes seriously a threat from an organisation that, in 2013, does not have an official website or Facebook page is another matter entirely. And even the Newsday got its name and acronym wrong as the body was incorrectly referred to as the “Trinidad and Tobago Copyright Collection Organisation (TTCCO).”
The Copyright Music Organization of Trinidad & Tobago (COTT) stated that it has no connection to the TTCO, which according to news reports is serving the interests of the National Carnival Development Foundation.
Kejan JJ Haynes, former multimedia journalist at Caribbean Communications Network in Trinidad and currently a student at Columbia University in New York, explored the legality of the issue:
The streets of Trinidad and Tobago definitely constitute ‘public space.’
Remember, the issue raised isn’t you posting your pictures online. It’s if your pictures are taken without permission and then used for financial gain. That’s why so many photographers place their watermark on their photos before posting them. It’s to keep people from stealing them. So unless you willingly gave someone flagrantly copyrighted material knowing fully well that they were going to cash in, you’re fine.
That being said, if you can prove that someone else has used your pictures for financial gain you have a better chance of getting remuneration because your intellectual property was stolen.
Philip Edward Alexander criticized the position taken by Cornwall and TTCO:
Hogwash! Any bush lawyer would love to face this ‘organization’ in a court of law where rules of evidence applies and challenge their authority or his claim. The fact of the matter is Trinidad Carnival takes place in the public space OWNED by the taxpayers and cannot be constricted as rigorously as these people want it to be. The Carnival is part of the culture of Trinidad & Tobago, and any monetizing must be shared with the people from whom the largess flows or none at all. Perhaps a day can come when bandleaders, in exchange for securing their art, are forced to pay a hefty ransom to enjoy the public space on which their art is transformed into cold hard cash. To quote a legal luminary and doctor friend of mine – ‘If band leaders want to enjoy copyright protection, let them fund the entire festival and utilize private venues for their presentation. As long as I am funding carnival as a taxpayer, and my road is being used for the parade, all rights to images are surrendered by the band leaders and masqueraders.’
Alexander felt that the TTCO was trying to dominate what should be a public event:
This is a brazen attempt to tax the people for the enjoyment of their own culture in their own country after the fact and should be resisted with all patriotism and national pride. The legislation under which this organization TTCO wants to strong-arm the people needs to be repealed, the organization disbanded, and Cornwall and the rest of the supporting cast who attempted this cultural pickpocketing sent on their way.
Nigel A. Campbell responded to Alexander by stating that the situation iss more complicated than it seems:
As defined by our laws, ‘work of mas is an original production intended to be performed by a person or a group of persons in which an artistic work in the form of an adornment or image presented by the person or persons is the primary element of the production, and in which such adornment or image may be accompanied by words, music, choreography or other works, regardless of whether the production is intended to be performed on stage, platform, street or other venue.’
It is irrelevant to imply that because the mas is played on the public street, ‘any monetizing must be shared with the people from whom the largess flows or none at all.’ The law is specific in the definition of a work of mas, and public display and performance is a right enshrined by law. However, there is a lack of specificity in the law as to further details on copyright infringement with regards to works of mas as opposed to audio-visual works, sound recordings and literature. Beyond the statements that a work of mas can't be reproduced and that the producer of the work of mas is the owner, there is a vagueness that muddles interpretation as you have begun to do.
This lack of specificity is made clear in Sec 8(1) which prohibits certain acts of reproduction, but does not identify if a photographic reproduction is the same, taking into consideration that a work of mas is an object (‘adornment or image presented by the person or persons’) called a costume! I guess it's like taking a photo of the playable side a CD as opposed to the artwork side and cover which is copyrightable! And, certainly, the law seems more interested in the knowing commercial exploitation without license than mundane reproduction on social media.
Journalist and Cultural Historian Kim Johnson felt that the debate was “surrealistic”, considering the wider challenges facing Carnival:
The ship is sinking and people are sitting at the dinner table arguing over who should have the last slice of cake. Are they mad? This country is dying from the greed of many people, one aspect of which is the stupid, childish idea that there's a dollar to be claimed from anyone who draws from the public well of images. You all should be glad if someone produces books and magazines of Carnival photos, and if they could make that a profitable thing to do they should be given national awards. All you really believe there is original art in the bikini and beads costumes? Or the tired old traditional masqueraders dragged out every year for the tourists? Or that Carnival is the ‘greatest show on earth'? Can't you see in those ideas a delusion that is psychotic in its dimensions?
Taran Rampersad thought that overly stringent copyright restrictions would hurt Carnival:
The present Copyright system has taken most of the relevant bad for T&T from the U.S. without taking the relevant good. The gatekeepers are stoned with their own power. The people who do art in the genre of Carnival do deserve protection, but draconian protection makes the candle cost more than the funeral – and there WILL be a funeral.
Jacqueline Morris thought more emphasis should be placed on the cultural value of creations as opposed to merely the monetary value:
The implementation now with TTCO getting involved sucks. But the principles remain. Better implementation is not that difficult if we agree that all artistic work has value that should provide monetary benefits to the creators. But we don't. Here, the argument is often about the value in the context of a national economic space, not of the intrinsic value of the artistic creation or product itself.
Taran Rampersad quibbled with this assertion:
There we go with ‘value’ again. We don't agree that artistic work has value; we can agree that some artistic work is seen to have monetary value as demonstrated in the pseudo-free market related to ‘mas’. The underlying principle is that if something has *value*, it should have a cost associated with it and protections available to it. That sort of thinking leads to the Copyright system T&T has now. However, not everything created at cost has value. Therefore, one cannot protect everything that has a cost because not everything that has a cost has a value. This tethering to the government seems an extension of colonial law in enactment. We all know Carnival is a lot of money for a few people, and they've been making it regardless of alleged infringements, from petty to severe. They, it seems, understand that when people share works it adds to their *brand*. And brand, by itself, has value but is not directly protected by Law other than through trademarks, copyright and patents. ‘Mas’ is probably one of the most interesting examples of Open Culture – Free Culture, its very ROOTS! – becoming closed by very close-minded people.
Engineer and steelpan innovator Professor Brian Copeland weighed in on the issue of “value”:
One can choose to measure that value in any manner. However, if you have to choose one single measure it would have to be financial. The mas ‘developed’ over time largely due to the prize monies awarded. Panorama helped mitigate a social problem, rivaled only today by gun toting gangs. There is a cost/benefit study somehwere in there! Nothing is free … you pay one way or the other. There is a challenge in managing this ‘cost’ that balances the potential of gaining returns to fuel yet another round of activity while protecting the chaos that is so essential to real creativity. I see GORTT's [the Government of the Republic of Trinidad and Tobago] role as that of using public resources to ensure the short and long term growth and development of the arts for the good of all the people — all of the arts. This is why it has to be valued.
in the context of Copyright, not all artistic output has value. You rightly point out that ‘Monetary value is based on what is saleable’, and that's exactly what Copyright is about. Protecting the investment and derivative profits (and debts, mind you) of creators. The distinction between creators and artists is easy. This morning I made some poop, a derivative work of what I ate. It wasn't something I would call art, though some might disagree. When you start talking about artists, you start talking about the definition of art. That's a silly rabbithole to get trapped in. Lets talk about creators and copyright, the value that Copyright is meant to protect (monetary) and so on. Clouding the discussion does not make for better art.
Photographer and journalist Mark Lyndersay addressed some of the issues involved in using pictures for advertising:
Advertisers are traditionally expected to negotiate the rights to any identifiable person or property used in their projects. There are model rights as well as property rights that must be negotiated before such use. The works of mas issue adds a specific wrinkle to such limitations and it's one of the reasons why most agencies use ‘original’ pieces created for ads when they need a Carnival costume. Unless there's a co-branding exercise in play.
The online discussion surrounding this issue will no doubt continue.