I have recently been thinking about the concept of fair use and copyright law. I can see you nodding off but stay with me for a few minutes. Recent posts on the ASMP blog have referenced the multiple and opposing court rulings regarding artist Richard Prince alleged copyright infringement of 30 images by photographer Patrick Cariou.
Initially, a NY federal court judge ruled that Richard Prince and Gagosian Gallery infringed upon photographer Patrick Cariou's copyrights by creating paintings and a collage from photographs torn from Cariou's book titled Yes, Rasta. The appeals court reversed the ruling and found that 25 out of 30 works by Prince made fair use of Cariou's photographs. Five works were sent back to the lower court, as the appeals court said those works did not significantly differ enough from Cariou's original photographs in order for them to determine their transformative nature.
During the first trial, Prince was able to piss off every photographer on the planet with the oft quoted claim that Cariou's images were "mere compilations of facts...arranged with minimum creativity...[and] are therefore not protectable" by copyright law. (http://www.pdnonline.com/news/Appropriation-Artist-2241.shtml)
The appeals court said: "The law imposed no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary use may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship and research) identified in the preamble to the statute."
In the past, the Supreme Court has said that in order to qualify as fair use, "a new work generally must alter the original with 'new expression, meaning, or message." The appeals court was convinced that Prince's artworks were transformative in all but five as the works had a different character, and gave different meaning to Cariou's original photographs. (http://www.pdnonline.com/news/Richard-Prince-Did-N-7964.shtml)
So what does this mean? The rarity of the case (the last major cases similar in scope and notoriety have all involved another famous, or infamous, appropriation artist, Jeff Koons) should not be cause for alarm nor should the arrogant assertions of the appropriation artist. So why should you care?
Few people outside of lawyers understand the doctrine of fair use; I doubt many people could define doctrine. So I decided to try to figure out. Fair use is defined in 17 USC 107 Limitations on exclusive rights: Fair use. The section lists the four factors to consider when determining if an action that seems like an infringement of someone’s copyright might actually be allowable as a fair use. The factors are:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Now, let’s translate:
1. Is anyone making money on this use? Does someone, other than the original artist, benefit financially or is the use for the common good?
2. Has the work been published, shown, reproduced or otherwise seen in public? One of the things that courts consider is whether or not the creator bothered to register the art with the Copyright office.
3. Quality and quantity are the rule here- how much was used and how valuable is it to the whole? You may try to make the case that every item in a photograph is unique, chosen and composed by you but courts rule on whether or not your image of the over photographed Grand Canyon is unique when reviewing other similar images.
4. What effect does it have on the marketability of the original piece? Does it make it less salable or desirable? If someone uses a portion of your image, does it change the value of your image?
There are also a few pesky but persistent uses that the courts have found to be fair use such as when someone uses an excerpt to review, critique, illustrate, or comment. Who hasn’t seen an artist’s work shown in a review? There is also an exception for parody which includes some but not all of the work; parody defined as to mock or make fun of. The best example of a parody is the thousands of images making fun of American Gothic by Grant Woods. The final uses are probably the most easily understood; quotations from a speech or paper or my favorite, limited copying by a student for school work.
So the take away should be this:
It is part of your job, as a photographer, to police the universe to see if your photograph has been appropriated, swiped, stolen, infringed or used by someone without your permission. Artists do use photographs to create paintings, sculptures and other works of art. If you discover someone has used a substantial portion of your image for commercial purposes, consider talking to an attorney. If you discover that someone has utilized a small portion of your image, consider how and why it was used as well as the context of the use. A letter or email may work as well as an attorney’s pricier intervention. A letter should include a proposed remedy for the potential misuse; this can range from informing them that they have used a copyrighted image, asking them to Stop (cease and desist) using the image as well as the displaying the work derived from it to demanding that they pay for use. Again, an attorney can assist you with this.
It is important to remember that the fair use provision of the Copyright law was created to be a bridge between protecting the economic interests of the creator and the Jeffersonian ideal that a broad dissemination of knowledge and information is necessary for the common good and development of the society.
—by Laurie ShoulterKarall for ASPP's Midwest Chapter.
Recent articles regarding the misidentification of the facts surrounding a photograph of a Palestinian father holding his dead son in the Washington Post brought up the question most often posed in college journalism classes; if you cannot verify the truth or veracity of the facts, attribution or caption of a photographed subject, what should you do?
Journalists using the written word have long wrestled with this question while photographers/photo journalists have allowed the image to speak for itself. In this particular story, the caption attached to the photo blamed the child’s death on an Israeli airstrike. The caption helped to have the striking image picked up and published around the world. Days later, some but not all of the newspapers that published the picture printed a correction/retraction that the child’s death was actually the result of a Palestinian rocket that fell short of israel. The contextual change was in response to a report from the United Nations Human Rights Council though Hamas, the Israeli military and even the BBC refused to comment or confirm the report. http://tinyurl.Com/c9ml54e
The 2011 documentary, titled 'Pictures Don't Lie', by Soledad O’Brien for CNN http://tinyurl.Com/bsylj34 explored the work of Civil Right’s photographer Ernest Withers. Recent documents identified Withers as a FBI informant from 1968 to 1970. Does this new information change the power of Wither’s images of Martin Luther King Jr.or the Memphis sanitation workers’ strike? Do the choices that Withers made in personal life have a direct connection to the images he made?
Are photographers solely responsible for the fact that images can and have been manipulated by outside influences, editors, newspapers, media organizations and other groups with differing political and social agendas? Many photo classes teach students that the very act of capturing a photograph involves their personal control and manipulation over how and what the photograph will reveal as it is being recorded. Students are taught that their control over the equipment, lighting and subject should be deliberate and reveal the choices and intentions they have made. This is often done in order to influence the way viewers perceive the pictured event, person or object.
Don’t we, as the public and viewers, also have a responsibility for questioning, or at the very least, considering the authenticity and factualness of the context of the photographs as well as the bias of the photographer? Fiction is defined as a concoction or fabrication. Clearly the images of the dead Palestinian child and Emmett Till's corpse are not inventions or lies. Equally but not nearly as apparent is the fact that those photographs were created to intentionally provoke a response in or from the viewer.
Diane Arbus said “a photograph is a secret about a secret. The more it tells you the less you know.” Documentary photographs should raise our consciousness, contribute to the socio/political conversation and document the concerns of our times. However, perhaps it is time to revise the adage that photographs don’t lie and instead call a photograph what it truly is, a monentary representation of reality at that time.
Industries represented included publishing, photography, illustration, stock, image research and web development. Christopher Beauchamp, former mid-west board member, who recently returned to Illinois after several years away, also graced us with his presence, as did ASMP President Ron Gould.
The mix of talent in the room created a fun atmosphere and lively conversation. While one-on-one and small group discussions took place the most ironic discovery was that member Todd Bannor and ASMP President Ron Gould are each official event photographers for either the Romney or Obama campaigns. They each had interesting views on campaigns, shared no personal politics but did discuss contract details they have each had to deal with. Let’s leave it at that, you should have been there!
As always, we stayed beyond our scheduled time to everyone’s satisfaction.
With hopes of seeing even more of our area members at our November networking event (details forthcoming) here are a few photos from the evening.
We want to introduce a select group of people in the Grand Rapids area to an unique national organization--The American Society of Picture Professionals. Our membership is comprised of art buyers, art directors, photographers, videographers, photo editors, designers and image suppliers. If you create, edit, research, license, distribute, manage or publish visual content ASPP is the place for you! There are many benefits to membership including discounts on products, networking events, educational events and a great magazine (The Picture Professional)!
Thursday, September 13
from 6 to 8 pm (EDT)
at Bar Divani
15 Ionia SW
Grand Rapids, MI 49503
Please join us for complimentary h'ors d'oeuvres and networking and learn how a membership in ASPP would benefit you.
There is no obligation to join ASPP if you attend this event!
Please come out and learn about us and enjoy some great snacks!
Space is limited to the first 30 rsvp's only. You may bring a friend if they are in the industry.
2637 27th Avenue South
ASPP Minnesota hosted PICTURE CONNECTIONS event May 9, 6-8:30 PM at the Vine Arts Center in collaboration with It's a Wonderful Light, the MCTC Photography and Digital Imaging Spring 2012 Portfolio Show.
We had a fun informal evening of networking, refreshments and exchange of ideas. Lead Target photographer Kirby Johnson and a local agency Art Buyer will gave short presentations and review portfolios.
|Sponsored by our friends at;|
CHARTING A NEW COURSE: THE CHANGING LANDSCAPE OF IMAGE RIGHTS
Photos by REP3.com ©Robert Erving Potter III
|8:30 –9:00 am
||Registration / Coffee / Networking
sponsored by The Bridgeman Art Library
||Welcome remarks from ASPP Director Jain Lemos
||Session 1: Keynote Speaker
Mr. Chris Reed- Senior Advisor - US Copyright Office
Copyright News from the Top–Update on Orphan Works Legislation
||Coffee Break sponsored by APA (American Photographic Artists)
||Session 2: “Keywording: Art or Science?”
The presentation will cover the necessity for creative keywording of images as well as tools to make the job easier.
Presented by Paul H. Henning Founder & CKO of StockAnswers and Jody Apap, Founder & CEO of KeywordSmart.com
||Lunch on your own or networking– Door Prizes including $250 APPLE Gift Certificate from AGE Fotostock!!
||Session 3: Michael Ross - Senior Vice President and General Manager of Education at Encyclopaedia Britannica
Electronic Publishing licensing in new formats
sponsored by Universal Images Group
Thank you to our fantastic sponsors!
Midwest Chapter Holiday Party - Dec. 9, 2011 was a party to be remembered!
Midwest ASPP members and their guests shared a great evening of camaraderie and holiday cheer. A wonderful spread of food and wine had something to please everyone. The hand crafted artisan chocolates made a memorable impression on this attendee. The band performed a great selection of tunes that had everyone on their feet dancing. An abundant number of gorgeous picture books were given out as door prizes so that many attendees left with a souvenir of the evening. It can be safely said that a great time was had by all. This was a party to be remembered.
Thursday, October 27, 2011
At the law offices of
Lockridge Grindal Nauen P.L.L.P.
100 Washington Street South Suite 2200
Minneapolis MN 55401
We are pleased to headline this event with a presentation by the ASPP 2011 Picture Professional of the Year Barbara Smetzer and husband, award-winning photographer Don Smetzer. The Smetzers are coming from Chicago to share their stories and wisdom gained from a century of combined experience in commercial and stock photography. Join us for an evening of exploration of the past the future of the photo business.
5:30: Doors open for networking. Enjoy delicious food and beverages while you mingle with your colleagues in the creative services industries. ALL picture professionals and students are invited!
6:30: What It Takes. by Troy Braun. Minneapolis based Photo Agent and Teacher, will present a slide show highlighting his photographer’s best and most innovative work. Troy will point to current trends in the commercial photography business and what he looks for as an agent.
7:00: Copyright Update, What’s New? by Chris Sandberg. ASPP member and Lawyer with Lockridge, Grindal Nauen will give us an update on what current and pressing copyright issues are affecting our industry.
7:30: A Walk Down Memory Lane with the Smetzers. Don and Barbara Smetzer will offer some historical perspective by sharing their wisdom gained from rich and varied photo careers. Barbara was Editorial Director at CLICK/Chicago, Tony Stone Images and Getty Images for many years. Don has a diverse and successful photography career including 25 years as a movie stills photographer. He was recently coined by ASMP Chicago as a “Living Legend of Photography”.
8:30: Q & A and wrap-up.
ASPP members get in free, non-members $10.