SBHD: Now that photographs can be scanned into computer systems and completely transformed, where does that leave copyright? Jane Austin investigates
The finer points concerning copyright in relation to creative work have always seemed open to abuse, particularly concerning photography. The law, which maintains that the photographer holds the copyright of the image unless he or she assigns the right, appears comprehensive enough.
But with the growth of digital image manipulation techniques, and personal computer manipulation software systems becoming quite prosaic, it is even more difficult to police the unlawful use of an original image. Now, many art directors and designers are unsure as to how far they can go with an image before they fall foul of the law.
Reuel Golden, editor of the British Journal of Photography, sees that the current vogue of sampling various photographs to produce one image has led to a general confusion over what is allowed. “Not everyone is clear about how the law works,” he explains. “Many photographers find it difficult to identify their work when it has been used in this way. For example, how can one car photographer say to another, `you stole an element of my Escort or my backdrop of a sky’?”
Steve Bloom, a photographer and partner of image manipulation company Jones Bloom, found himself in a sticky legal position after altering a photograph of Diana and Charles for a national newspaper. Bloom was commissioned to make the couple look 20 years of age, using his Barco system. The newspaper hadn’t sought the approval of the original photographer, and found itself in hot water when he sought compensation. According to the photographer, he had gone to great lengths to ensure that the couple looked young and attractive in the photograph, and the manipulation exercise was in breach of his copyright.
More recently, however, Bloom carried out a similar exercise for another newspaper with a picture of Elvis Presley during his last concert. For this project, Elvis was made to look 20 years older, but because it was possible to recognise the original photograph, and as Bloom created a new shared copyright between the original photographer and himself for the new image, he was on the right side of the law.
“My understanding of the copyright law is that if an image is altered in a way that might be construed as defacing that image, then the photographer has a right to object,” says Bloom. “Image manipulation is a continuation of the creative process. A photographer is paid a fee and generally has an understanding with the art director that digital manipulation is going to be used to create a more powerful and dynamic image. I have never had anyone come into Jones Bloom and knowingly abuse a photographer’s copyright. Nevertheless, with many photographers now selling their photographs extremely cheaply and copyright-free to disreputable CD-ROM agencies, it is difficult to put the required time and effort into policing how images are used. It is a question of people policing themselves and maintaining high ethical standards. I’m running a business and I don’t expect people to bring in stolen goods.”
Under the 1988 Copyright Act, photographers were at last treated similarly to all other authors, in that the person who creates the photograph is the author of it.
The Act also maintained that it would be an offence to copy a slide or transparency commercially on the grounds that it would be convenient to do so and would prevent the need to contact the photographer every time the photograph was required.
A new feature in the Act was a provision for work “that is computer-generated by computer in circumstances such that there is no human author of the work”, with copyright expiry either 50 years from the end of the calendar year in which the work was made, or a maximum of 125 years if Crown Copyright applies.
According to the British Photographers’ Liaison Committee’s publication, The ABC of UK Photographic Copyright, “this provision has yet to be tested in the courts and would appear to apply mostly to scientific, technical and remote surveillance photography, where exposure, timing, frequency, focus and tracking, for example, are all computer-controlled. It goes without saying that this section of the Act does not create this novel kind of copyright ownership for such things as automatic copying of photographs or film, artistic works of all kinds and other works of `artistic craftsmanship’ which may have their own copyright which will require to be cleared before any such copying is undertaken.”
This provision is set to be tested shortly in a Canadian court when photo library Tony Stone Worldwide seeks damages against designer Stephen Arscott for $400 000 (Ãº266 000) in its first major copyright infringement lawsuit.
The case has been widely documented (DW 25 November l994), and concerns Arscott’s computer-generated design, The Real West, the focal point of which is a Nick Vedros photograph licensed to Tony Stone Images. The case is set to act as an industry test case and establish a global precedent for photographer’s rights in cases of image manipulation. Tony Stone believes that the main points arising from the case are, first, that the intellectual property rights of the originator of any art, be it photography, illustration or design, must be acknowledged and upheld. Second, that copying without permission is an offence. And, third, that it doesn’t matter if a designer imitates an image in a different medium – as a drawing rather then as a photograph, for example – it’s still a breach of copyright.
Stone sees that his company’s action against Arscott also has consequences for designers. “We feel that designers and art directors need to realise that they are in the same community as us and consequently also want copyright protection for their work,” he says. “It’s not a question of how far a designer can go with the photograph. the image is the photographer’s livelihood and he or she has to be rewarded for any commercial use of the photograph. We know that it is possible to scan in an image and manipulate it beyond all recognition to produce another photograph. The point is that the second artist couldn’t have gone that far without the first image and needs to acknowledge this. As a result, photographers see digital manipulation systems as both a threat and an opportunity.”
Helena Kovac, managing director of Comstock photo library, applauds Stone for taking action against Arscott, but is concerned as to how the unlawful use of images will be policed when there are more high-resolution CD-ROM systems available and the Internet is properly established. “Digital images can have an inbuilt barcode, so when the image is scanned it is dispersed in the image. However, it would be virtually impossible to keep track of. The problem will start when photo libraries begin to download high-resolution images. Then we will only be able to supply images to clients who pre-pay,” she says.
Tony Stone believes the way to avoid problems in this area is to never offer high-resolution CD-ROMs. “Then the images will always be too low for adequate reproduction, unless the picture is the size of a postage stamp. Stock libraries are going to be reluctant to offer higher resolution CD-ROMs than at present. if they do, there will be a much higher fee,” he predicts.
From a designer’s point of view, Matthew Gilbert, a Mac-operator with Coley Porter Bell, sees that the majority of designers tread very carefully with borrowed images. “I manipulate library images and magazine shots for internal work and presentations, but we certainly wouldn’t use them for print. For that, we would commission original photography. it is difficult, however, to know how much of an element you can use – like the sampling of music or using extracts from a book,” he explains.
As image manipulation has become an everyday factor in the production of commercial photography, it is now essential for designers to become familiar with the copyright law, and also to have respect for the photograph. One successful copyright action concerned a turn of the century image by the photographer Eugene Smith. The image showed the photographer’s children walking through a clearing in some trees and aimed to represent hope. Years later, a South African missile company used the image in an ad to show how weapons ensure security and safety. As the old adage goes: if it’s worth copying, it’s worth copyrighting.
* The photographer and commercials director Malcolm Venville used the Mamba system at Wace to produce this humorous image of commercials director Mark Denton. Football fan Denton, formerly creative director of ad agency Simons Palmer Denton Clemmow & Johnson, ex-copywriter Chris Palmer and Venville came up with the idea of hosting an exhibition celebrating the life and times of the mythical football player Nobby Shufflebottom. The exhibition, which will be on show at Sproteville, 85 Charlotte Street, London Wl from 11- 15 March, will feature a series of images of Denton in disguise as a football player from the First World War era. Football ephemera, such as old programmes and rattles from the period, will also be on display. Venville used the Mamba to make the images look like authentic cigarette cards from the period. He shot Denton on a scenic background, then did a cut-out of the image and placed it on a white background. In post-production, Venville cleaned up the image, made the colours more intense and added a vignette of grass. Venville enlarged Denton’s eyes and brought them closer together, while making his ears bigger to fit the character of an Edwardian footballer.
* Charlie Ward is a recent Tony Stone Images signing and is perceived by Tony Stone as one of the new generation of digital artists blurring the line between technology and art. The image, Down Below (pictured top left), is a combination of scans and is the first of a series of images called Alchemy. Ward took a picture of herself under water and then scanned it into her Macintosh using Adobe Photoshop. She then manipulated the image using the program’s various paintbrushes and combined it with images of found objects such as driftwood and a picture frame. The final addition was the scan of the fish. The finished photograph aims to show that digital manipulation techniques can be used to employ a feeling of texture.
* The shot of a running cheetah (pictured on page 18) was composed from three photographs – one background image and two pictures of different cheetahs. The image shown features the legs of the two different cheetahs which have been manipulated to look as if the composite animal is running and is totally different in all respects from the source images. Consequently, a new copyright was created between the original photographers and Steve Bloom of Jones Bloom, who used his Barco system to create the new photograph. “If there was only a small amount of retouching to the original shots and the context hadn’t been changed, there would have been no need for a new copyright,” claims Bloom. “It is only when the manipulation has played an integral part in the creation of a recognisably different image and the change is so great, that a new copyright between the manipulation house and original photographer must be arranged.”
* Ad agency Lowe Howard-Spink commissioned photographer Andreas Heumann to create this image for the recent Smirnoff poster pictured above. The idea of the campaign is to show that things aren’t quite what they seem when seen through a bottle of the vodka. The final image is composed from more than 70 original photographs taken by Heumann. These include five landscapes, several different skies and a bottle shot. Heumann shot a hovering model helicopter and then added the lights and removed the model’s camouflage in post-production to get rid of any military connotations. He used a video camera’s frame-grabber facility to capture the wasps’ bodies, although capturing the wasps’ heads proved to be more of a problem. Heumann had to drive hundreds of wasps in a Perspex box from the country to his London studio in order to capture a good headshot. He used his own Dicomed Penta Pro manipulation system to create the final image as he finds it tedious to sit in a bureau going “a bit darker, a bit lighter”. Also, it gives him absolute control over his images, which is a stipulation in his contracts. “For me, it is an extension of developing and just as important as doing work in the darkroom,” he explains.