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, redefine, rent, mortgage, pawn, sell, exchange, transfer, give 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.
Slightly early this week, but your views are needed before July 9th if you think that including public buildings and public works of art in your photography should be allowed.
The summer programme is upon us and the first event in the calendar is the revival of the mini groups. Our thanks to those who organised them, and I look forward to seeing some of the results on the club Flickr page and the Facebook Members group as well as at the Mini Group Evening on September 17th. It’s always good to get out and practice in a sociable group of like minded photographers. None of us see quite the same thing in the same subject and even small changes of angle can have a disproportionate impact. It is all about perception, light and composition – what draws us to the subject, the interplay of light and shadow and how it looks when confined in a viewfinder. That’s about it. Until you press the shutter …..
When the shutter is depressed – I mean activated rather than feeling blue, I leave that to the poor souls who stumble across my images – an artefact is created. In essence something fashioned by a human being of some degree of cultural and/or historical relevance coalesces on the film plane. Now I am not vouching for the degree of cultural and or historical relevance of any particular image, that is something projected on it by its beholders which can and will change over time and is more a matter of fashion than iron law of nature. Nonetheless we have mixed our labour with that which is around us to make something new. Who owns it?
Because we have fashioned something new by our physical and mental effort we are said to have created an Intellectual Property and it is recognised in law. If it is for and by us it is ours. If it is something that is done in the course of our job it would usually belong to our employers. I suppose that is an advert for self employment, in which case we need to be clear with whoever commissioned the photos, i.e. stumping up the readies, exactly what it is they are buying, usually a license to use the images under certain circumstances. License basically means a permission or freedom to use. The photographer doesn’t usually pass ownership as part of that. It remains theirs. Without getting into commercial contracts – for which you really do need a lawyer – it is essential to work out, exactly, who owns what, where, when, how and why.
This does not only apply to photographs, though the Intellectual Property Office (Patent Office to you and I) do a very good guide (UK only) to rights concerning images, intellectual property and the internet. Neither is it uniform across Europe, enter – to varying degrees of booing and hissing, some of it deserved, most of it ill informed – the European Union. One of the founding economic principles that applies to the European Union is to smooth the path of trade between member nations. Those with a memory undiminished by time will recall we joined the European Economic Community (EEC). It does this by straightening bananas (myth), ridiculous health and safety laws (I quite like being healthy and safe, and get very angry about employers hurting people for profit, as do most employers, but maybe you are different) and in the relatively near future (time passes exceeding slow in international corridors of power), copyright. You will, if you have read last week’s blog at the very least, already be aware of this as it has been all over the photographic press especially in relation to something called Freedom of Panorama. This basically is the freedom to take photographs that are of or include public buildings without having to get property releases from the architects and owners of said buildings. Odd, you might think, but the process of creating Intellectual Property applies to buildings as well as to photographs, or even writing blogs.
The European Union is made up of 28 different countries with 28 different views of copyright laws. Now Intellectual Property is BIG business. You may remember the spate of law suits occurring over who invented which part of the smart phone and therefore owes whom how many hundreds of millions of pounds for ripping them off. You might also recall that Amazon own the patent/copyright on taking photographs against a white background (at least in the USA). In order to make things clear for (the lawyers of) 500 million people the EU is looking at copyright law standardisation. Part of this is the so called Freedom of Panorama. This is currently under discussion. Theoretically we could be sued for royalties for taking (commercial) pictures of buildings in Belgium, Bulgaria, Denmark, Estonia, France, Finland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Portugal, Spain, Romania and Slovenia though no one ever has been, but that statement applies to buildings, not to public works of art. Which rather begs the question why should the Freedom of Panorama be so restricted? This has exercised 300,000 + European Citizens so far who have signed a petition against the idea it should become standardised across the EU. The first vote is on 9th July.
You can write to your MEP’s via this link (the most effective thing to do) It will send a confirmation link to your email BEFORE sending it to your MEP’s:
https://www.mysociety.org/projects/writetothem/ (applies to the UK other countries have other ways)
Tell them it is about Freedom of Panorama and copy the suggestion at the bottom of this link
Consider this. In the field of consumer magazines alone, there are around 3,500 titles in the UK market. If the average publication is monthly that means 42,000 issues a year. Take a nice round figure of 100 photo’s an issue – for no better reason than it makes the maths easy but a quick and dirty survey of Issue 5 of the free Photography News suggests not an unfeasible number – that makes 4.2 million photographs published a year. Add in other print media, that is anything that gets published for a general or specific readership on paper, then that figure shoots up enormously. Before we add in the World Wide Web. They have to come from somewhere. Now I am not suggesting that everyone can make a living out of photography – it is a crowded market and as much if not more, a lot more, time goes into getting and organising work as taking photographs. It is a BUSINESS and therefore both technical and competitive – but there are people, picture editors and alike, who spend their working days looking for suitable material. Not all of it is the result of a direct commissioning processes.
Four club members, Myk Garton, Mark Stone, Simon Caplan and Mark OGrady, who have had their work published, took us through some of the how’s and why’s, the cold approaches from picture editors and the direct commissions and showed us some of that work..
Myk was first up and he talked about being approached about work that he had on his Flickr account. The first and foremost point is that if no one can find your photographs then no one is in the position to approach you about using them, for love or money. The key is tagging. I don’t mean running around in a hoodie with a spray can of paint, though the effect is the same in announcing to the world that you were (are) here. Tags are labels giving directions as to content including an image, webpage, blog, file etc. Its technical name is metadata, in the sense we are using more accurately as descriptive metadata. We are going to stick with Flickr because that was the example that Myk, Mark S, Simon and Mark O all referred to but it applies to most sites that you can upload content to that are more serious about your content than simply-monetarising your content for their own purposes – Facebook being a big exception, and also one where you have to very careful because of the license you grant simply by uploading any image to it. Myk underlined the importance of accurate tagging. If Kate Middleton isn’t the subject of the image, then don’t use the tag. It might appear in a lot of searches but when it turns out to be your hamster in a tiara or a picture of your birthday cake it isn’t going to get taken seriously. Most probably. It won’t get a second glance from someone looking for images of HRH visiting locally.
What makes a good tag? If you want to know about a situation there are basically six things that you need to know about it. What, where, who, when, how and why? This is not a bad place to start. What do you see when you are looking at your image, basically what is it a photograph of? Where was it taken? (Myk’s picture in the Angling Times came from that piece of information. Your camera will provide some technical data as a matter of course but even if it is GPS connected a Blagdon Lake tag is more use than 51.337063, -2.703268) Who is in it (if you know, of course)? When can be a time of day, or is the location connected to a specific date or period (Battle of the Somme 1916 for example – as in the Musée de Somme 1916 in Albert, France)? How is usually provided by the camera (Exif data) but might be a description in itself such as bokeh, and the why can either be something like an anniversary, for example Golden Jubilee, or a formal occasion, investiture of the Bishop of Pie. Some or all may be relevant. They should be kept short and you should cover alternatives (World War 1, World War One, WW1, WWI all relate to the same event) . All this helps with the dark arts of Search Engine Optimisation (SEO) about which I shall say no more.
Myk also pointed out the importance of joining and being active in Flickr groups, such as the Reflex Camera Club Group (a hint to those of you yet to join). There are thousands, no tens of thousands. A search on Bristol in groups brought up 4,455 references on Flickr – that is groups, not images. Flickr groups shouldn’t be confused with the sets and groups options where you can – wait for it – organise sets into themed groups – wow! – as they are groups of contributing individuals to themed photo streams. That doesn’t mean you cannot post one image to more than one photostream as each account is treated separately. This gets your work – with its tags, of course, to a wider audience and this more likely to get your images noticed.
Mark Stone was next up. Mark talked about the difficulties in protecting images from freeloaders, thieves, pirates, borrowers, elves, goblins and the ill-informed, especially good quality images on fora like Flickr. Mark related that watermarks can be removed in seconds and may not be worth the effort, at least though, you have shown the effort and intent to protect your intellectual property rights as the thieves signify their intent by removing it. He suggested using low resolution images that can still look good on the screen (as with the club competition 1400 x 1050 maxima for projected images) again not fool proof as interpolating software can be used to increase the resolution to a certain limit. Mark suggested around 50% of the original. This can easily be done in a lot of photo editing programmes and if you want a quick and easy online version you could do a lot worse than picresize – 54 million+ images resized (they say) and counting. That said a combination of the two at least makes more effort for the would-be looter. Also, you should make it clear that your images have all rights reserved unless you are giving them away and even then there is such a thing as a creative commons license. These are options on Flickr and can be varied from image to image, though All Rights Reserved is a good start.
Mark underlined Myk’s point about the importance of tagging your images – if they can’t be found then they can’t be used which is a good thing when you are talking about copyright, but a distinctly bad thing when you are talking about selling your images. The latter tends to outweigh the former and if you take reasonable steps then at least you have made the freeloaders, thieves, pirates, borrowers, elves, goblins, aliens, drug cartels, blaggers, the ill-informed, psychopaths, sociopaths and the generally ill disposed job slightly more difficult. Tags, watermarks, licensing, low res images, generally “A good thing”.
Simon took up the reins and talked about a commission that took him all over the country, but was more complicated than it need be because the client didn’t really have a definitive idea of what they wanted. Indeed they didn’t have much of an idea at all. He described the key thing in putting together a bid for a commission is tying the client down as far as is humanly possible. It is important that the photographer knows to what end and use the client is going to put the commissioned images, how many they expect and expect to use and what shape. These are all factors that have a physical impact on how the images can successfully be planned and then get every possible angle of the subject. Pricing is difficult in any trade. It is a Goldilocks problem. Too little and it will not pay the bills. Too much and it will not get the commission, but just right has to be at the highest point the client says yes but still remains competitive. There are hidden traps for the unwary. On a geographically dispersed commission like this one, which pretty much seems to have taken up all four corners of Great Britain, a lot of time is likely to be spent travelling. That time needs to be accounted for and charged at a reduced rate or the commission can become unprofitable. There may be production hidden costs so some agreement has to be made over those. Mileage, hotel bills, wear and tear, insurances, post production, food and other consumables, paperwork etc. are all part of the total cost.
Simon extended the discussion on copyright, which was also something that Mark O took up on. You must protect your copyright or your revenue stream will dry up and you can be out of pocket. Never sign away the copyright, make sure that the client is aware that you retain it and exactly what you are licensing them to use the copyright for. There are some common misconceptions surrounding copyright, especially around what constitutes fair use and what that applies to. Everyone who presented agreed that you need to be explicit on the terms of credit and the uses to which the images can be put. Simon recommended the Association of Professional Photographers book “Beyond the Lens” available here, at a hefty £30 + p&p. There are others you might look at/use at your own discretion, they generally cover three areas:
You must get these type forms, not necessarily the forms linked to, filled in as part of the process. Finally Simon pointed out that you are taking photographs for someone else and that they can butcher them in any way they please – they are paying for them after all and they are paying you for precisely that privilege.
Mark O finished the evening on getting known. As with everything else in this world what you know isn’t as tradable a commodity as who you know. Doing free work can lead to paid work later, networking is the important thing. His big break came via the company his girlfriend works for. The footwork is always necessary if you want to make a living and the world of image editors is fairly small, in any given area they are likely to know each other pretty well. This can work for you or against you, but however they treat your hard graft it is as well to remember the old maxim, “The customer is always right”. Repeat business is many times cheaper to get than new and the relationship and understanding that you build over time helps you interpret what it is they are looking for. That said you must make clear what the terms of the trade are, make sure release forms are in place and accessible, and get as much detail from the commissioning editor as possible.
All in all a very informative evening and thanks are given to all who made it possible, particularly to Myk Garton, Mark Stone, Simon Caplin and Mark OGrady for their time and materials.
Next meeting we have a visiting speaker, Ian Wade on Landscape Photography.