On Suspending Our NFT Offering

Right before the holidays, I decided to suspend offering NFTs of the Faces of Open Source photographs due to hostility and attacks on Twitter and elsewhere. 

If the hostility had only been directed at me, I would’ve tolerated it, but sadly, it spilled over to some of the people I photographed. Not wanting this project to be a source of angst for anyone, or a litmus test for being on the “right” side of the NFT argument, I decided that a suspension was best. 

That said, I want to address many of the misconceptions tweeted about the NFT offering, photography rights, and the Faces of Open Source project in general. I also want to offer a photographer’s perspective on NFTs and why I believe they are important for artists.

First, some background on the Faces of Open Source

I began the Faces of Open Source photo documentary project in 2014. It’s a labor of love and my way to give back to the open source community, which I’ve long believed is under reported by mainstream media. 

This is a not an open source project. This is an art project, created by an artist, in service of highlighting a community of people that I strongly believe do not get nearly enough recognition.

I’m a professional photographer who has produced and created all of the photos in this project. This is not appropriation art. All of the Faces of Open Source portraits were created during highly produced photo shoots that were paid for by me (with the very occasional help of sponsors). As any participant can tell you, I take my work seriously and put a lot of time, money, and effort into creating these images.

Speaking of money, each of the photo shoots cost several thousand dollars. That includes items like the cost of travel, studio rental, camera/lighting gear, assistants, as well as many hours of my time to shoot/process/deliver the images. I’ve photographed over 100 people in dozens of shoots around the country, which should give you a rough idea of what it costs to produce a project of this magnitude.

Fundraising Using NFTs

The reason I mention cost is that some people assumed my NFT offering was about my “getting compensated” for the project. This was not the case. I do this work happily at my own expense because I can and want to. It’s unlikely that I will ever recoup the money I’ve put into this project. That’s ok. If I was in it for the money, I would’ve stayed working in tech. 

As I explained on this blog back in April, the experiment was all about seeing if NFTs could be used as a creative way to help fund future photo shoots. Essentially, crowdfunding by selling art. In that same blog post, I also explained that we would donate a portion of NFT revenue to open source foundations/organizations featured in the project.

I emailed the blog post to all participants as well as several thousand newsletter subscribers. I also posted it to Twitter and other social media before I started promoting the NFTs.

I regret that some people were still surprised by the NFT offering eight months after it launched and that my objectives weren’t better communicated to those who jumped to conclusions about my motives.

On Permission

Another misconception I saw in many threads was that I didn’t have permission from the subjects in my photographs to sell these images using NFTs. 

To be clear, every person I photograph signs a model release in order to participate in this project. The model release is a “full” release of rights, which means that each person I photograph gives me permission to use the images in “any media” and for “any purpose” and in “any product or service” relating to this project. 

While not strictly required, this type of unilateral release is common in the film and photo business because it’s often required by downstream commercial publishers of the photography (such as book publishers, film distributors, etc.). Personally, I use these releases so that there’s no confusion about rights before any photos are even created. 

That said, a rights release isn’t necessarily required when it comes to selling photos of people using NFTs, but we’ll get to that in a minute. 

Why NFTs Matter to Photographers

The main reason many photographers are so excited about NFTs is because they finally enable the digital equivalent of what we do offline all the time — sell limited edition prints of our photographs. 

In the world of physical print sales, it’s important to collectors that prints are limited in edition because scarcity is one of the things that gives the print its value. It’s the difference between buying a mass produced poster of Ansel Adams’ iconic “Moonrise, Hernandez, New Mexico”, versus one of the few prints he made of the photo in his darkroom. In the photography world, selling limited editions is a common and regular practice. It’s not a scam or sham, it’s simply how the market for fine art works. 

Until the advent of NFTs, photographers had no way of applying the limited edition principle to digital versions of photographs. The use of the blockchain now makes it possible to sell limited editions of “digital prints” to collectors who are increasingly choosing to display photography on screens.

Not convinced? I’ve done more exhibits of the Faces of Open Source photographs using high resolution display screens than physical prints. The latest generation of displays are now so good that it’s no longer far fetched to think that museums and collectors might soon prefer to acquire the digital print of a photograph over a physical one.

After all, digital prints have many benefits. They allow collectors to easily rotate the photography on their walls (even if those walls are half-way around the world). They are far easier to store than physical prints. Finally, the provenance of a digital print is crystal clear thanks to NFTs and the public nature of the blockchain.

While I personally love the feel of a physical photographic print, it’s impossible to ignore the realities of where the market for photography is headed.

But don’t just take my word for it. Scott Belsky, the Chief Product Officer for Adobe, recently explained how the software maker is responding to this trend by adding NFTs authoring features to their flagship image editing tools. Or, take a look at this news about Samsung integrating NFTs into its televisions. It’s just a matter of time before photographers have a push button way to sell digital prints using NFTs that consumers can buy from their sofas.

Copyright & Rights of Publicity

Another common misconception I encountered while sifting through Twitter criticism about my NFT offering was how copyright law relates to the sale of photography via NFTs or otherwise.

In the United States, a photographer is granted the copyright for an image at the time of its creation. Copyright law is clear, with very few exceptions, that the photographer is free to sell copies of their images. Just because we are now using a blockchain to track those sales doesn’t change a photographer’s rights under the law. (I’m not referring to cases where someone sells an NFT for an image where they do not hold the copyright. That kind of behavior will lead to lawsuits.)

What about Privacy & Rights to Publicity?

One exception to the photographer’s right to sell their images is when the photograph includes a recognizable person. In these cases, the law sometimes requires the photographer to obtain permission from the person if that photo is used for a commercial purpose. 

However, it’s a very common misconception that a commercial purpose is simply defined by the photographer making money from the sale of the image. It is not. 

Instead, federal copyright law (and state laws such as California’s Right to Publicity) define commercial purpose more narrowly, applying only when a person is being portrayed in a way that can reasonably be perceived as advocating or sponsoring a product, service, or an idea. This essentially amounts to use in someone else’s advertising campaigns and merchandise. 

For example, if a photographer wanted to use a portrait they made of someone as part of an advertising campaign or packaging for a new cereal, this would require permission from the person in the photo. On the other hand, simply selling copies of that same photo to individuals as fine art prints would not. 

Also, another point worth mentioning is that copyright and publicity laws do not require photographers to get permission from identifiable subjects if the image is used  “editorially” — meaning photos used to inform, educate, or express opinions protected under the First Amendment of the United States Constitution (freedom of speech and of the press). This includes using a person’s name or photo in a newspaper or magazine, but also in educational programs, films, non-fiction books, or even on informational websites. Again, this editorial provision isn’t negated if the photographer makes money from the sale of a photo. This is how photojournalists make a living.

With respect to my own NFT offering, not only did I have full model releases from everyone I photographed, but the entire purpose of the Faces of Open Source is editorial. It was disturbing to see people confuse their disapproval of NFTs with the idea that selling these photos (using NFTs or otherwise) was somehow illegal.

Licenses Matter

Just because the law is on the side of a photographer, doesn’t mean a photo should always be for sale.

Portrait photographers, like myself, are in a relationship with the people they photograph, and trust matters. This is why I’m protective of these photographs and don’t make them available under a CC-BY-SA or CC0 license. Some people in the FOSS community have been critical of this decision, but in my experience it’s not even a choice. Putting photos of people online under unrestricted licenses, inevitably, opens them to all sorts of bad actors who will use the image to create implied endorsements that are, at best, innocently commercial, and at worst, defamatory.

The New Politics of NFTs

Now that we’ve discussed how the law works with respect to selling photography, let’s circle back to what I think is the root of the controversy around NFTs. 

When I launched our NFT experiment back in April, I had no idea how political NFTs would become for some people. My decision to use NFTs to sell these images was a business decision and not a political statement or idealogical position. To me, NFTs are a tool, just like WordPress is a tool for running my websites, or Adobe Photoshop is a tool for editing my images.

I never imagined anyone would misconstrue my use of NFTs to sell photography as an implied endorsement of NFTs (or crypto, or web3) on behalf of the subjects in those photographs. In my opinion, that’s a very big leap. Similarly, I use commercial software to create my photos. Does this mean I’m implying that my subjects are anti FOSS? Of course not. Perhaps it’s my perspective as a photographer, but this inference feels like a bridge too far. After all, this collection of photographs is titled “Faces of Open Source” and not “Faces of Crypto” or “People that like NFTs”.

Unfortunately, the political climate right now is so incendiary that people are quick to jump to conclusions, harass, and publicly shame to make their point. I’m not the first person to have their reputation attacked because of their experimentation with NFTs/crypto/web3, and certainly won’t be the last. (As I write this, a woman I follow on Twitter is being sent death wishes because she accepted a job at a company in the crypto space. Wtf?) This kind of behavior is unacceptable, but worse, it prevents leaders in the open source community from openly engaging in the discussion by creating a culture of fear. This is not speculation on my part. Multiple people have told me how they actively avoid commenting on anything to do with NFTs/crypto/web3 to avoid being targeted on Twitter. After my experience last week, I can understand why. 

Being hostile and intolerant towards people doesn’t make NFTs go away (or Ethereum use less energy), but it does scare talented people from getting involved in a space that needs innovation. 

NFT Hater Tropes

I won’t address every negative sentiment about NFTs that was thrown my way, but I would like to offer a photographer’s perspective on a few of the them.

(I’m paraphrasing these headlines from actual Twitter comments)

“NFTs are just a sketchy way to launder money.”

Are some people using NFTs to launder money? I could believe that. But I also believe that not everyone who is using NFTs is a money launderer. I know a lot of photographers and artists that have legitimately generated revenue and new markets for their work using NFTs. It’s easy to discount the value of this if you’ve never worked as an artist or don’t believe in supporting artists.

NFTs are a new kind of financial opportunity for artists who, frankly, could use some love after two decades of downward economic pressure and rampant image theft brought about by the miracles of web1, web2, and Internet advertising. So let’s not be so quick to throw the baby out with the bathwater. 

“NFTs Promote image theft.”

I’ve seen this and know of several photographers whose images were taken and sold as part of someone else’s NFT offering.  In my opinion, selling another artists work as your own is about as anti-artist as it gets. However, this kind of image/copyright theft is not exclusive to NFTs. In fact, it’s far more rampant on the open Web. 

My photographs are stolen online all the time. For example, I once discovered a guy was illegally taking images from my website and selling prints of them on both Amazon and eBay.  Another time, a photographer (!!) was including my images of New York City in wedding albums for his clients. My images have illegally found their way into advertising campaigns, book covers, corporate websites, and even the occasional piece of merchandise. 

A lot of image theft happens because people treat Google’s image search as a free stock photo service. Should we shut that down too? I don’t think so. 

The honest truth is that if you’re an artist in the 21st century, you have to make peace with people stealing your art online. That doesn’t make it right or legal, but becoming outraged because it’s now happening with NFTs is disingenuous.

“NFTs are immoral and unethical because they are a pyramid scheme that tricks people into buying smoke.”

Does speculation and fraud exist in the NFT market? No question. Should NFT marketplaces do a better job policing sellers and protecting buyers? Yes. Is this all just a pyramid scheme? No, it is not.

Again, there are lot of artists who have successfully used NFTs to connect with collectors/fans and even generate new ongoing revenue streams from secondary sales of their artwork (unheard of offline!). In short, NFTs have enabled artists to build economic communities around their art. That’s a really difficult thing to do, and something I believe we should be encouraging more of while fraud and speculation schemes are rooted out. 

Also, I see many people holding NFT marketplaces to a higher standard than marketplaces like eBay, Etsy, and Amazon, which decades after their debut, still continue to deal with counterfeit merchandise, scams, and fraud. Literally, every year I fight with those marketplaces to shut down sellers that are illegally selling or using my photographs. 

“NFTs are unethical because they contribute to global warming.”

This area is where I have the most concern. Crypto networks such as Bitcoin and Ethereum use huge amounts of electricity, which in turn, result in carbon emissions that contribute to global warming. 

However, unlike Bitcoin, Ethereum is doing something about it. First and foremost, the network is moving away from its current proof-of-work model to a proof-of-stake consensus model (Ethereum 2) that uses orders of magnitudes less energy. There have also been a number of interim optimizations such as Layer 2 scaling, side chains, and lazy minting — all of which have helped to reduce energy usage even before the switchover to Ethereum 2 occurs.

When I launched my NFT offering in April 2021, I believed the move to Ethereum 2 would happen by the end of the year. I also thought, even if it was delayed, Opensea (the marketplace where I listed my NFTs) would implement a layer 2 or side chain scaling solution that would cut energy use dramatically. That’s pretty much what happened when Opensea added the ability to mint NFTs using Polygon (a proof-of-stake side chain).  

If NFTs were doomed to forever produce outsized carbon emissions, with no near term end in sight, I’d have a very different opinion. However, that’s not what’s happening. Today, there are now 100+ NFT platforms that use low energy proof-of-stake chains and another dozen that use energy efficient layer2 scaling or side chains. The community is aggressively innovating on the energy efficiency front. Big steps were taken in the right direction. It’s not enough. There’s still more work to do.

</rant>

On a more personal note, I’m very sorry that our experiment with NFTs put some of my project’s participants in an uncomfortable position or opened them to harassment online. In hindsight, I would’ve done some things differently. Despite all the hostility and shaming, this experience gave me an opportunity to reflect on the ideological polarization in the open source community surrounding NFTs/crypto/web3. 

My hope is that we continue to see the entire NFT ecosystem evolve, delivering even more value to artists/collectors, while aggressively reducing energy consumption and fraud. As we’ve seen with the evolution of computing, the Internet, and the Web, it will undoubtably be the open source community that turns this aspiration into a reality.