This week was in many ways a retrospective one. We were asked to consider the re-use of a photograph, a similar question to that raised earlier in the course in respect to ‘Fair Use’ limitations of copyright in regard to photographic imagery.
In this case we were pointed to the ‘Joywar’ dispute between the US painter, Joy Garnett and the US Magnum photographer, Susan Meiselas. Garnett Joy used the image of a man holding a flaming Molotov cocktail taken by Meiselas as the basis of a 2003 painting. As can be seen below while there is some artistic change the key imagery is a pretty close copy of that in the photograph (shown here as a 5x4 crop from the larger 3 x 2 original image).
Given that it was clearly artistic re-use and that there had been a number other earlier re-uses of the same Molotov thrower figured in both Nicaragua and elsewhere it was I feel unsurprising Meiselas never sued. In fact in an article on this dispute Garnett commented on the re-use of her own interpretation in a supportive way. In Meisela’s case with some reluctance, though this seems more about the loss of the original anti-repressive government Nicaraguan narrative than infringement on her photographic copyright.
We were asked how we would I feel if someone created an artwork that appropriated, referenced or remixed my image?
I would initially be honoured, assuming it was being re-used in a good or artistic way. In their article on the expropriation of images of Meislas’s photography and Garnett’s painting both creators accepted artistic re-use, albeit Even if the use of my images was in a ‘bad’ way, a term I use for what I view as appalling/shoddy artistic practice, I would probably respect the artists right to be creative in their own way. However, I wouldn’t be afraid to voice my personal opinion of their abilities in re-using my imagery in this way.
Much more difficult is the use of my images in a non-artistic unchanged way, specifically use without attribution or commercial use without consent/payment. My understanding is that it is now common in digital media to re-use images without asking permission or notifying the creator of that image. Working on the principle that they can simply respond by removing the image if requested at a later time or negotiating a fee if they have to. Even worse from the view of the creator a fictitious or null attribution may well be provided. This I feel I would have to react to, contacting the user to request removal or payment. Whether I would go to a more formal legal route is unlikely, cost and time figure in that conclusion.
During research about this question I was alarmed when I came across a commentary by the Canadian legal academic, Lucie Guibault, on two European judgments involving the use of re-sized image thumbnails by a Google image search-indexing engine, Googlebot.
Whilst Google's use was not judged to offend the owners copyright, even though only change was to reduce the original image in size. It was judged that by displaying an image that had been on the author’s website with no specific restriction on use, Google’s search will apparently automatically ignore such tagged images, permission for such re-use was effectively granted.
Because of this no copyright infringement was said to have taken place; “Google was not in breach of copyright because, although the artist had not explicitly consented to the use of the images”. The artist had not blocked her website from being indexed by search engines, thus giving an implicit permission to any search engine to display the thumbnail images.
Interestingly I very recently came across an exhibit on an ongoing project by the London-based photogrpaher Ryan O'Toole Collette where he is collating numbers of similar images captured by otherwise unconnected users of the dating app.'Tinder'. As with Googlebot, the images are unchanged apart from size.
So the issue of re-use is probably more complicated than most people think. Especially for photographers displaying images on websites, Instagram blogs and so on. Fellow photographer Andrew Hawkes wrote an interesting and practical blog-piece on this subject. Not easy.
However, the pendulum may be now swinging back. On the same site as Guibault's article I came across a more recent 2017 piece; Brad Spitz commented on a new French Act on freedom of creation, architecture and cultural heritage. Spitz highlighted the creation of a compulsory collective management system for the reproduction and communication to the public by search engine services of “plastic, graphic and photographic works”. In other words, Google Images, and other similar services, are likely to pay royalties in France.
Project-wise I’m very much still in the air as to what steps to take next. I want to change my approach to some degree, not so much from unhappiness in my recent photography, more in experimenting with alternative ways of illustrating my subject.
I also wish to initiate a new sub-project and I’m exploring several possible project ideas as to whether to select one to take forward in the next few weeks.
I visited a very interesting exhibition 'Silver Lake Drive' at The Photographers Gallery by the London based US photographer and videographer Alex Prager and was fortunate enough to meet her. Whilst the work exhibited was rooted very firmly in the technicolour past with many images taken on elaborate sets she often presents quite powerful imagery. I particularly liked her film of the tension between a ballerina on stage and her audience and fellow cast-members. Shot in Paris it's both amusing and oddly convincing. Refreshingly different.
There was also a retrospective exhibition of the work of the documentary photographer Tish Murtha (1956-2013) called Tish Murtha: Works 1976-1991.. Covering some of the less inviting realities of living and working in certain parts of the UK during the 70's and 80's her work is very powerful. I wasn't sure how many scenes were 'candid' as opposed to posed, but one reason it was difficult to tell was that all the images had impact regardless of how the scene was captured. It was also a testament to the power of black and white in creating a sombre scene. It was also interestingly curated.
1) Garnett and Meiselas, 2007 On the rights of Molotov Man, New York, Harper’s Magazine (February 2017 Issue). Accessed 9th June, 2018 from http://www.firstpulseprojects.com/On-the-Rights-of-Molotov-Man.pdf
2) Guibault, 2011 In Defence of a Fair Use Defence, Kluwer Copyright Blog 10th March, Wolters Kluwer NV, Alphen aan den Rijn, the Netherlands. See http://copyrightblog.kluweriplaw.com/2011/03/10/in-defence-of-a-fair-use-defence/ (Accessed 9th June, 2018)
3) Andrew Hawkes, 2017 How to find out who's using your photography online without permission. Andrew Hawkes Website, 16th January. See https://www.andrewhawkes.co.uk/blog/how-to-find-out-whos-using-your-photography-online-without-permission (2017 - Last accessed 9th June, 2018).
4) Spitz, 2016 New French Act: Google Images will have to pay royalties. Kluwer Copyright Blog, 17th October. Wolters Kluwer NV, Alphen aan den Rijn, the Netherlands. See http://copyrightblog.kluweriplaw.com/2016/10/17/new-french-act-google-images-will-pay-royalties/ (Accessed 9th June, 2018)
5) Photoscratch #17 event 2018 curated by Hanna-Katrina Jędrosz, 9th July. Hotel Elephant, Spare Street, London . (work in progress from documentary photographers). See https://www.evensi.uk/photo-scratch-17-hotel-elephant-workspace/262492586 (accessed 11th July, 2018)
Alex Prager image '#crowd 3 (Pelican Beach, 2013)' downloaded from https://thephotographersgallery.org.uk/whats-on/exhibition/alex-prager-silver-lake-drive