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by Dr. David Fialkoff, Editor / Publisher
Photographs used without permission

I was attacked on Facebook. On the one hand, I provoked the attack. On the other hand, it was a nasty piece of work.

Publicity is what I do. When I and my merry band are not creating our own content, I search the internet for other people's content about San Miguel. Then, I reproduce their content here on my version of our digital town square.

My dream is to bring the "buy local" ethic to online advertising, keeping the profits circulating locally through Lokkal, our not-for-profit, cooperative, publicity association.

It's a win-win situation. If you are already promoting your event, art or what-have-you online, my republishing it gives your content greater reach, more views. Mine is a public service. I may not be making money, but I do receive a lot of gratitude. But my attacker was not grateful.

For years, I have imagined a website combining the murals of San Miguel with a map feature. (I even took a first, very tentative step towards creating one.) I became aware of AK and his website www.sanmiguelmurals.com on September 4.

AK, with greater diligence or at least more time than me, has catalogued 800 murals in town. And with his tech background he has mapped them out. With my own librarian tendencies, I immediately felt connected to him. Some of my best friends are obsessive-compulsive.

I introduced myself to AK via WhatsApp on September 7, sending him a link to my proposed first installment of a series on the murals of San Miguel. Here it is, restored with muralists' names, links back to AK's website, and credit given to AK.

He wrote back, "Thank you" but:

 
If any of my work regarding a mural (photos, text, etc.) is going to appear on another site, I really need the artists' enthusiastic permission that they want this kind of promotion.
 

I wrote back pointing out that artists, at least those who are painting on walls, want promotion, and asking if the artists' permission really needed to be "enthusiastic."

AK was adamant. But five days later I had a chance to plead my case in person when we met at a Jewish New Year luncheon.

My point then, and over the course of the last two months, has been that my obtaining the muralists' permission would be redundant, seeing as how: 1) they have already given AK permission to use those images online; 2) artists (at least "struggling" artists) want promotion; 3) no one is making or losing money. AK's position, then and over the course of the last two months, despite my eloquent arguments, has also been consistent, the artists must be "respected and not exploited."

For me publishing is a labor of love; I don't make money at it, and I spend a lot of hours each week keeping our community informed. So, if I can save time each and every week by circumventing a content provider's ridiculous demands, I will And I bristle at the suggestion that I might be exploiting anyone. Then it seems illogical that not showing an artist's art is more respectful of the art or artist than is showing it.

Falling into my grizzled-old-editor mode I told AK that I didn't have time to ask some 60 artists for the permission that they had already given. (Not to mention the extra handling, sorting and resorting, that the selective publishing of 800 murals would entail.)

Then, asserting seniority, I asked AK how long he had been in San Miguel. He told me, "One year." "Well," I flatly asserted, "You're not in California anymore. Here in Mexico we do things differently. I'm going to publish your photos." He replied, "I wish you wouldn't," sounding not like the nearly seventy-year-old man that he is, but like a little boy being bullied on the school playground. He got visibly upset. His voice squeaked. I felt bad, but justified.

Moments later, I reported this interaction to our mutual acquaintance, who had introduced me to AK, to his website several days earlier and to his person there at the luncheon. This acquaintance was disbelieving that AK could be so punctilious. But he also chastised me: "You don't argue with such a person, especially not at a New Year's celebration at someone else's house. Just tell him that you will get the muralists' permission and publish the murals anyway. How will he know?"

Corrected, I went back to AK and, much to his relief, told him that I agreed to his terms. We spoke more. He showed me a bus app he made, into which you enter where in San Miguel you want to go and are then shown which bus or busses to take.

The next day (Sunday, September 13) I published the first installment of my series, "The Murals of San Miguel." On September 30, two days after I published the third installment, AK messaged me, "At minimum, can you remove the pic of me and my bio so it does not look like I endorsed or wrote your article?" I did, and later, trying to please his continued complaints, I went further, removing all text from and reference to his website. (See that stripped down version.) Disassociating him and his website from my series made no sense to me, but as my father used to say, "What a boring world it would be if we all thought the same."

But please him I could not. On October 12 AK messaged me, threatening to denounce me publicly, sending me the text of that denunciation.

Once, in the last 15 years, someone asked me to remove content from my platform. The day after I published two poems written by a famous poet (as part of an article about her time in San Miguel) the literary agent of that famous poet wrote to me via WhatsApp. Although the famous poet had herself read and approved the article before I published it, her agent felt differently. The agent's message was to the point, hostile, and, while not directly threatening legal action, strongly asserted copyright infringement.

I wrote back immediately, "Give me a minute." I took that minute to eliminate the poems from the article (digitally it is that quick). Then, again immediately, I wrote back to the agent that the poems were gone, asking her to refresh her screen, and apologizing for my mistake. She replied in a surprised, friendly tone, thanking me for my prompt response.

If anyone, including any muralist, including one of those who supposedly complained to AK, asked me to remove their work from my website I would do so with the same promptness. But I don't particularly like the new type of foreigners who are coming to town (you can't keep getting named "best small city in the world" year after year without suffering the consequences) and I have a hard time with one of those neurotic newcomers interfering with my work.

"Damage," while technically not required, is an important consideration in any instance of copyright infringement. For the case to be legally significant, somebody has to be hurt. In my dispute with AK (especially as I am not making money) no one is losing anything: not the muralists and not AK. In fact, if I were allowed to identify the muralist and link back to AK's website, everyone would benefit: the muralists, AK, you the reader, and Lokkal.

Intellectual property rights, especially in the age of AI, are a hot topic. Most commonly, and certainly in this case, giving credit to the content creator and a link back to the original source is the standard industry etiquette.

(If you Google "murals san miguel," AK's website does not appear anywhere near the first page of results. And because of the way these things work, it almost certainly never will.)

Still hoping for an understanding with him, a friendly resolution, after receiving AK's threat of denunciation, I messaged him three times, without receiving a response. Here are excerpts of those messages, which were in their whole entirely polite:

 
October 14

I am not "stealing" your photographs. They are already publicly available. I am publicizing your work and was (until you made me remove all links to it) driving traffic to your website. That's a good thing.

If you want to publicly denounce me, I would be happy to publish your denunciation. We could let the public weigh in.

October 15

Dear AK,
I feel like you are someone from the flatlands who came up to the forested mountains of Vermont, deep in the country, to visit me where I had a place past the end of a dead end dirt road. And, relying on your city ways, you are nervous about something trivial, something of no importance. And I am telling you that it does not matter. No one is being robbed, stolen from, disrespected... Quite the contrary. It's a good thing. This is the way things are done here. Let me show you around. Let's publicize your bus app.

I had a large window system installed on the third floor in the suburban Connecticut town where I lived. The contractor, Archie, was a brilliant man whose family lived in that town for many generations. His father was a prominent surgeon and his uncle, his father's brother, was a successful sculptor. Both of them were very good with their hands, as was he. When I asked Archie if he should pull a building permit for the job, he said, "They would laugh at me." Just so, I don't need the permission of the artists.

I've been here for 16 years, and have been publishing for 15 of those. Please take it easy. Everything is more than ok. Mexico takes some adjusting to. The main thing is to relax.

October 23

Dear AK, I hope all is well

I just listened to an interview with Peter Thiel. In relation to builders, people who break rules but get things done, he spoke about Good and Evil vs good and bad. He said, something that does not work is bad, like a bad car or a bad plumber. The bad is incompetence, like your bureaucratic regulations that are suffocating the mural series. By contrast, evil is morally corrupt. Thiel explained that Marlowe's Faust was bad, a charlatan, a fake alchemist, while Goethe's Faust was real in his pursuits. Both made deals with the Devil. Marlowe's Faust was condemned. Goethe's Faust was redeemed.

I admit that my taking your photos is morally questionable, but I am betting that the greater good I do with them will redeem me.

What if my intentions are just as altruistic as yours? I wish we could talk about it. Maybe we can be stronger, do more, together.
 

I sent this last message to AK (October 23) at almost the exact minute that he was denouncing and defaming me on Facebook. The evening of the following day (October 24), I got a message from a friend informing me of his denunciation, "I just want to make sure that this is on your radar. I'd like to hear your side of the story." This article is my side of the story.

I may be reckless when it comes to publishing other people's content, but I am careful about where I air my dirty laundry. Facebook is a family website that frowns on defamation of character. I stay in touch with friends and family there. I don't want to post anything there that might jeopardize my account.

AK is apparently not so careful in this regard. His denunciation of me, posted in a SMA Facebook group, reads as follows:

 
I didn't want to bring this up here, but Dr. David who publishes Lokkal Magazine has been regularly publishing my photos and my descriptions of street art directly against my stated wishes. He's also using my name in a way which falsely gives the false impression that I am working with him.

I told him that my site provides a map to the murals, and he's welcome to take his own photos. I also told him that if any artists wanted additional publicity on his site, with their permission he was welcome to use my photos of their art. He declined to do either, and is instead stealing my work.

My mural documentation project began with a couple of goals and is 100% not for profit.

1. Respect the artists
2. Respect the art
3. Provide good, useful, info.

In private, I've repeatedly asked Dr. David not to use my work, then asked him to remove it. Now I'm repeating the same request in public.
 

I don't want to engage in a legal analysis of his post; that he had, at least for a while, given me permission: "At minimum, can you remove the pic of me and my bio..." and that I was no longer using his name. My point, what hurts, is that he would not communicate with me. I suspect that he doesn't do much of that with anyone.

I was always willing to relent without a public "shaming"; willing to stop publishing AK's photos without the threat of legal action (as advocated by an overzealous commenter on his post on Facebook). But I kept hoping that AK would chill out and stop thinking that he has some monopoly on respecting artists and their art.

Lokkal operates in the public interest. I saw no reason to deny the community a view of the community's murals because of some newcomer's persnickety gringo propriety about my reposting his already publicly available photographs.

Then, I was aesthetically correct. My concept of a weekly series was the perfect presentation of AK's collection of photographs. Looking at murals is like smelling perfumes; in rapid succession, after four or five you reach your limit. You might go to AK's website and look through the murals. You probably won't. But even if you do, you almost certainly will not go twice. And anytime you do go, after viewing four or five murals, you probably will stop paying them the attention that they deserve.

It's also a shame that you will never see AK's bus app. But really, it is just as easy to ask any bus driver which bus you need. And, come to think of it, why would you want to geo-locate a mural?

Sensitive people are by definition self-absorbed. Being hyper-alert myself, I can navigate and even enjoy the exquisite etiquette of their intricate worldviews. I have a lot of friends who are on the autistic spectrum. I thought that I was making another.

I'm sorry that I could not convince AK to play together. Yes, it is his ball. But I only ever wanted him to kick it back to me. Instead, he told the teacher on me. So, I'll stop publishing his murals and go play with someone else. It's a big playground.