What would I do if you took one of my pictures from this blog and passed it off as your own? What would I do if you used one of my pictures to advertise something?
Well, I probably wouldn’t know unless someone told me, but I do have copyright law behind me. The two examples above are clear breaches, one of fraud and the other of theft. I can ask you to stop using the picture and in the second example to pay me money.
But what would happen if I was taking pictures at a public event? Do people in a photograph have any rights over how a picture of them is used? Well yes, if it is used in something like advertising but not if the use is editorial (this was the scene…). But what about a private or ticketed event?
There is a recent example where the use of a picture to advertise the singer’s clothing led to the shutdown of the clothing company. In that case it looks like the photographer was being reasonable but met a stupid initial response. The power of the calm and well-judged responses of the internet then bombed the clothing company (rabid attack monkeys on parade). This was one of those cases where the pictures were taken at a private event. If the professional photographers were given special access, then there should have been clear terms and conditions for the use of the images. If the band wanted to control the use of the images, this should have been clear so that the photographers had the opportunity to decline to take part.
Do you ever copy someone else’s work? By this I mean try and recreate one of their pictures. I can see a sense in which you might refer visually to an existing picture for effect. Think of the beginning of The Watchmen film where Doisneau’s picture of the kiss by the Hotel de Ville is recreated. Then there is taking an exact copy. I have done this: there is a picture somewhere of the statue of Churchill looming over the Houses of Parliament. I was in London, I was young, I took the same picture. If I had taken it without seeing the original first that would be fine: we both saw the same framing. But I had seen the original and I copied it. So that negative has never been printed or shown. What would be the point? It’s not my picture.
So one response to this might be to avoid looking at anyone else’s pictures, keeping all your influences clean and ensuring that you work from a position of innocence. Or you look at pictures you like and analyse why you like them. And then go out and recreate what you like rather than what you saw.
There was a discussion on the Negative Positives podcast about taking pictures of graffiti. I believe that, if the purpose of your picture is to reproduce the graffiti, then you are copying someone’s artistic work. If the purpose of your picture is to say something about the situation in which the graffiti exists, then you are not copying but commenting. It doesn’t matter what your intention was either, because the interpretation of a picture is owned by the viewer. If someone looks at your picture and says “that’s a picture of the x” then the best you can do is reproduce it accurately. If they say “I’ve never seen it like that before” or “x is in the picture but what is going on here?” then you have done something more than copy. Even then, there is the copyright of buildings and statues to consider. For example, you can take a picture of the Eiffel Tower during the day but not lit-up at night. In some countries you could, providing the item is not the main subject but forms part of a panorama. Not in France though. (The link goes to a very interesting source, by the way.)
So I suppose the summary is that if I take a picture of a created work (which doesn’t include landscapes, no matter what the creations claim) then I need to be explicit that my picture is a record. If I include a created work but the purpose of the picture is something other than a direct record, the interpretation of copyright and privacy varies with location. There are fairly well established principles of fair use and quotation and if we ever get close to making a copy of a created work, we should bear them in mind. But in case any of us thought it was clear, take a look at art. A collage is accepted to be an original work. Take a look at Dadaism and the use of found objects.
I think we can agree on the basics though: pass my work off as yours and you are committing fraud. Earn money from my work without asking me and you are committing theft. For the rest I guess we learn by doing (and would everyone please calm down?).
Update – someday your sins will probably find you out.