12th January 2017 – Creating And Editing Images, Who Owns What?

Speaker Clive Haynes FRPS  led the evening on Topaz and it is as well to reiterate that this isn’t just an Adobe compatible plug in, but that there are a number of editors that is designed to work with, and there are fourteen or so different plug-ins Topaz offer. Adobe, of course dominate the market, but all the plug ins are available at a discount via Clive’s website. From the afters this was one of those presentations that hit home at some fundamental beliefs about photography.

 

On the Facebook Group there was a lot of talk about what is worth editing, reflecting last week’s theme of editing and how much of it can a photograph have before it becomes a piece of graphic design. This week we are going to look into who owns an image, and this is linked to last week’s discussion on editing and on the Mighty Book of Face discussions from this week.

 

A year ago a San Franciscan judge decided that, under American copyright law, a monkey could not own the rights to a picture it had taken because it was not human, even though it pressed the shutter.  A new definition for “Chimping” this was not (the practice of taking a shot then reviewing it on live view and going ooh and ahh and pulling faces. Another reason to go mirrorless). It is, under English law (and not a few other jurisdictions), a question of personality, and though “Naruto” the Black Crested Macaque in question certainly seems to have bags of it in the way most of us think of personality, in law it is the capacity to hold legal rights and obligations within a legal system. This is what enables firms to go to civil law over disputes in contracts and so on.

 

Now you’ve seen the picture in question, I am sure, it became known as the Monkey Selfie. David Slater “took” the picture, in that he provided the materials, set up the shot and patiently waited for the Macaques to partake. Macaques have no legal personality and therefore cannot give their consent, nor withhold it to be photographed, nor profit from doing so. If the Macaque was owned by a person (it couldn’t in the UK by members of the general public, there are legal issue preventing this) or other body that has a legal personality then that animal would be their property and the prudent photographer would be careful to get a property release.

 

Now this isn’t the time nor the place to go into the pro’s and con’s of this case but it does illustrate something that most of the internet (i.e. the people who use the internet) is either blithely indifferent to or unaware of. Someone made that picture you are looking at. When someone makes their living from that, copyright has particular weight. Unless they give you permission to use that photograph, either directly or through a Creative Commons License, or other form of explicit license deal then we do not have the right to own their and/or use their property.

 

Without turning this into a Politics lecture (for that you’d have to pay me) this actually goes deeper than a feeling of “Mine”, it is an absolute foundation of our society. Let me quote from Wikipedia (Academics look away now): “Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefinerentmortgagepawnsellexchangetransfergive away or destroy it, or to exclude others from doing these things” (https://en.wikipedia.org/wiki/Property) . So regardless of opinions on Social Media (fancy that) demanding the right to exploit others work free of charge isn’t what the law in England and Wales licenses. Whether you agree with Pierre-Joseph “Property is theft” Proudhon or not is, as far as the law allows, irrelevant. We make property by mixing our labour (intellectual and or physical) with materials and by doing that create something that didn’t exist before and over which we have title (ownership free of valid claims by other parties). Then we can consume, alter, share, redefine etc etc it as we see fit within certain boundaries.

 

Fairly straightforward, at least until the lawyers get involved. There is a concept called fair use and there are questions of when others take your property as a starting point but make art of their own from it, such as sampling in music. Whose art then is it?

 

Artist Richard Prince was doing this with other people’s Instagram feeds and making $90,000 a pop out of it, a couple of years back (maybe still is) by altering the originals by posting a couple of words as comment underneath and then printing the whole thing. This did not please a lot of people, particularly those whose Instagram feeds he had mined for images, though others were quite accepting of it. No one sued of copyright infringement this time so its legality has not been tested. Civil law really is for the rich or otherwise well funded. Especially as he started “Rephotographing” other people’s work in 1975 and some of his work has gone for $1m or more, he would probably be in a position to afford to defend it. Indeed in 2008 he did just that and his defence of fair use (see above) was not accepted. Obviously this has not deterred him.

 

In fact this whole idea of other people’s stuff is quite problematic. An image can spin an idea, we might try to recreate that image or give it a new spin, either intentionally or through technical short-comings. We have in the UK the idea of freedom of panorama, which was under threat from the EU in its bid to harmonise European commercial law but was finally decided in favour of having one. If what you are taking is a view taken from common land it is not subject to copyright (though the manner you do it in might be in breach of other, criminal laws) and we have covered this before.  If it involves street photography then you must not conduct yourself in such a way as to cause alarm. If it involves minors it is always best to get a responsible adult’s consent – first. If it involves making money from someone’s image or an image of something that they own you can save yourself endless by getting a properly formatted consent (you can get them as a phone app these days). Ditto if you are profiting from the image of the property of another person (it all goes back to title).

 

So, editing our images, well silk purses and sows ears metaphors aside – or why are you wasting your time in the first place? judgements – is a matter of personal taste, at least as far as the amateur goes, but how much, really, is it your image in the first place can be a complicated problem.

N E X T  M E E T I N G

19th Jan 2017 19:30 – The Chairman’s Evening: I believe a camera will be required. Maybe a tripod too. Bring yours.