If people use your creations to have conversations, you win at culture.

There’s a lot of noise online at the moment around intellectual properly as the government tries to grapple with legislation like a man grappling with jelly on a hot day. The Digital Economy Bill is the main focus of this noise, specifically the bit which threatens to disconnect people suspected of sharing copyrighted material without permission of the rights holders. Meanwhile some photographers have gotten their knickers in a twist over Clause 43 of the Bill which threatens to make all photographs open to commercial use if the copyright owner cannot be found.

So in one fell swoop the government has managed to piss off the copyright reformers by bowing to the pressure of the big media companies while simultaneously pissing off small media producers by attempting some much needed copyright reform.

It’s a bloody mess and no mistake, but I don’t want to talk about it in depth as others have done a much better job. Seriously, go read that post. It’s lucid and non-ranty and everything.

What I do want to talk about it something that happened the other day. But first a bit of background. Remember this?

Of course you do. And you’ll no doubt remember the inevitable parody site where folk were able to create their own captions and share them. Here’s a few:

I chose those six deliberately because they all have something in common. Can you guess what it is?

That’s right. They all use copyrighted images without permission. They are, in effect, illegal. What should have happened is the authorities should have contacted mydavidcameron.com and demanded they remove these images on pain of prosecution. But a better system would be where they didn’t do it in the first place. Or better still, weren’t able to. Right?

No. That’d be stupid. And yet it’s publishing a poster like that is very much against the law.

So, finally, here’s the thing that I want to talk about. Inspired no doubt by the Cameron site the Labour party have been running a competition for their supporters to design their election posters. This was the winner.

Whatever you think of it as an ad you can see it comes from the same mindset as the Cameron posters, one of mashing up cultural iconography to make a point. In this case the creator of the image, reported to be “Jacob Quagliozzi, 24″ has taken this image from the BBC program Ashes to Ashes…

and stuck Cameron’s head on it.

The way the debate is being framed looks towards Labour and the Torys being forced to apologise for using the image without permission and breaking copyright laws they are in the process of reforming. The Stop 43 site wants to know if they licensed the photo from the BBC despite it being patently obvious that they didn’t.

Here’s their argument in a nutshell:

I’d rather the debate was framed in a slightly different way: Both of these adverts almost certainly should be legal.

When you create something that has massive cultural impact, such as a television drama series that resonates with millions of people, you can expect aspects of that thing to become embedded in the culture. Traditionally this might be a catchphrase or a fashion trend. People will discuss issues of the day using your creation as a means to finding a common ground.

If this happens to you then congratulations – you win at culture. Many rewards will be yours.

Now let’s bring the Internet into play. As we all know, the Internet is not just a distribution platform for media. It’s mostly used for conversation and discussion of the issues of the day. Sometimes this is done with words and sometimes it is done with with pictures, video and sound. And, just as a catchphrase from a popular television program might be used to carry meaning through these conversations, an iconic image might also be used, just as Mr Quagliozzi did for his poster.

Twenty years ago the only people able to acquire the raw images, mix them together and distribute them to a wide audience would be major media outlets. Today anyone with a rudimentary image editing software and a cheap computer can do the same. And that pretty much means anyone. You might not know how but the tools are there. Rather like baking a cake. You just need an oven and some basic ingredients to do the same sort of thing as Mr Kipling.

But copyright is being infringed. The creator of the image has lost control over how it is copied and distributed. This is a bad thing. Theft has occurred. Imaginary sums of money have been denied to their rightful recipients.

And yet the copying has the same cultural resonance as someone shouting a catchphrase from the show across a pub to quickly and effectively communicate something. You wouldn’t want to ban that kind of activity, or require a license to use elements on the script in everyday conversation. That would be absurd.

But this isn’t an individual. These are political parties using copyrighted material to promote their ideologies. That’s different, surely?

Here’s something I spotted the other day:

Batman is owned by Warner Brothers who, like Disney, are very strict about the commercial exploitation of their icons. This Crimestoppers advert is blatantly using Batman to make a point and yet I saw no “™ used with permission” notice on the poster nor on the website. And why should they? Batman has indubitably won the culture game for “fighting crime without revealing your identity” and this isn’t strictly Batman, is it?

A few days later I found myself in Subway ordering a sandwich (it’s been a busy few weeks so forgive the lapse in judgement – for the record the sandwich was disappointing) and noticed the employees had “There’s a Sub for that” emblazoned on their shirts. Turns out this was an advertising campaign last year.

Which bears a striking resemblance to Apple’s iPhone ads from last year:

I notice Apple don’t use the “There’s an app for that” line anymore. That’s probably because they know they won this particular culture game and therefore can’t reasonably expect exclusivity on the phrase.

Which is why I think the Ashes to Ashes poster is a bit of a red herring. It used to be said that an artist cannot control how their work is interpreted once they release it into the world. I would add to that the loss of control over how that interpretation is absorbed into and transmitted through the culture.

The thing those six Cameron poster parodies have in common is they all use images laden with rich cultural meaning to comment on the Tory leader. That rich meaning came from the original creators getting something right an winning at culture, but the price for that win is losing some control.

Simply put, culture is controlled and managed by society. If you, through luck or financial weight, manage to infect the culture with your creation then you can reap huge rewards. But you also give the control over the interpretation of that creation to society to play with as they will. And these days that involves people making their own media with your creation as naturally as they might integrate it into their own conversations.

If we go down the road of making this activity illegal we will effectively be making a form of conversation illegal. Because that’s what happening with these poster mashups – conversation. And it shouldn’t matter whether it’s a kid on his laptop, a political party, a crime hotline or some boneheaded spermbag in an advertising agency.

More importantly this has nothing to do with orphan works so it’s a shame Stop 43 are trying to use it in this way. But then since they’re pushing this sort of scaremongering nonsense I’m not overly surprised. Thanks to the way copyright law was formed orphan works are a serious problem and the solution is going to be complex and painful for some. But this isn’t about orphan works. It’s about fair use.

Here’s a song and video that uses cultural iconography to make a conversational point but in the process breaks copyright law and is probably illegal. I’d rather it wasn’t.