The pretense of photographic copyright
When photographers are advocates of copyright, I’m always confused. Okay, okay, I’m confused when anyone espouses a copyright mentality, but I’m especially confused when it’s photographers! The disconnect for me lies in the value of a photograph.
For the most part, a photo that is worth claiming copyright for—in other words, a photo that lots of people will want to use and therefore a photo that the photographer could potentially be paid lots of money for—is only worth it because of what’s in the image, not because of who captured the image. I’m not saying that the photographer’s eye or her-his ability to be in the right place at the right time aren’t part of what makes a photo valuable. It’s just that the impact of the artist’s talents on the worth of an image pales in comparison to the value of the content of the image.
Jill Greenberg’s Gwen Stefani
For example, this photo is more valuable than…
David’s Gwenn Seemel
...this photo not because Jill Greenberg is such a better photographer than my partner David, but because Gwen Stefani is a lot more famous than me (and because she’s also more naked-looking than me, but that’s a topic for another day). And it’s not just celebrity subjects that make a photo valuable under copyright. Famous locations, significant objects, newsworthy moments, and historical events can all contribute to an image’s worth.
I suppose you might make an argument that it’s the same for any image, even those made in other media. But while it’s true that subject matter influences the worth of any artwork, it’s more so for photos because they have that truth quality that makes them more susceptible to having their value seen in terms of content.
So, since the subject matter of a photograph lends most photographs the market value they have, how do photographers justify their copyright? After all, in the example above, it’s hard to identify who created the value which Greenberg capitalizes on. Stefani certainly contributes at least as much as Greenberg. And what about all the people who helped Stefani get to where she is? Do they have a claim on the value of the work?
By and large, subjects of a photograph don’t have a claim. Photographers do not need to seek permission to photograph anything in public. They don’t need permission to photograph people (except famous people sometimes) and they don’t need permission to photograph another artwork, be it a building or a painting. In a sense, photographers have a right that few others do: they can use other people’s work without asking and without fear of recrimination.
Photographers earned this right early. As photographic technologies were developing in the 19th century, a series of judicial decisions* insured that photographers would not be required to ask permission before piggy-backing on the work of others. In doing so, these decisions allowed photography to become what it is today: a ubiquitous and powerful means of expression and documentation.
And that’s a very good thing.
What isn’t such a good thing is how photographers have used these decisions which were made in favor of free culture. Many photographers require people to ask their permission to use their work—the same work that they created without having to ask permission of anyone. And that seems particularly selfish to me.
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*I was made to see these first judicial decisions about photography for what they were by Lawrence Lessig in his 2004 book Free Culture. It’s an excellent read, full of fascinating insights how copyright law and the corporate interests that come with the law influence the creation of culture.
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CATEGORIES: - Featuring artists - Free culture - Philosophy - Photography -
(5) Comments / Commentaires: The pretense of photographic copyright
As a photographer myself (even though I don’t believe in copyright), I think I get where some photographers’ arguments come from.
I believe it has little to do with the work itself (which I know sounds a bit preposterous since copyright is suppose to “protect” the work), but more to do with the photographer.
Much like your Gwen Stefani example, if Annie Lebovitz takes a picture of me, it’s no longer a picture of a nobody—it’s a picture BY SOMEBODY and that makes it valuable.
While most photographers are no Annie Lebovitz, most want to be her (in a manner of speaking)—and when they get there, they want their nobody-pictures to be by-somebody pictures and thus more valuable.
Having said that, I do agree with you wholeheartedly. I wished to mention that because I was thinking it 
That’s an interesting idea: using copyright to trace the provenance of a work as it makes its way through the world. I can certainly see how that could be important.
Still, I wonder if there aren’t better ways to do it…? Like making the work so totally yours that no one will question who made it? For example, I think Greenberg has done this successfully with the hyper-realism look of her photos. It’s a look that’s tied to her name—at least in my mind it is!
I’ve forgotten the exact quote or where I read/heard it from, but the gist of it is—
Photography may be the easiest art form to pick up, but it’s certainly the hardest to develop a unique voice in
—or something to that effect.
My photographer friends have to get signed releases from people in their photographs in order to use them publicly.
Photographs are the easiest kind of art to lift and claim as your own. That could be a big problem if you are making your living via your imagery.
I expect there are a lot of folks out there painting from photos that are not their own but according to copyright law - it’s ok to do that as long as the painting ends up veering away from the original image and is not an exact copy.
Gwenn...
SPECIFICATION: Chuck Colman of the Law of Fashion Blog reminded me that photographers can only use images of other people’s work if it’s more than simply an image of another person’s work. The photographer must add value to the work, not simply reproduce it.
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