Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.
Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?
Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”
None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:
“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”
“The judge here ruled that the idea of the image was the copyright, not the image itself.”
“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”
Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:
“The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr. Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Such an image would not infringe.”
So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.
Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.
Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.
In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.
Stop me if this sounds familiar. Professional photographer submits staged or manipulated image; newspaper or agency publishes image; reader spots manipulation; photographer is fired, much hand wringing ensues.
At first glance the weekend dismissal of long-time staff photographer Bryan Patrick by the Sacramento Bee appeared to follow the template established by Adnan Hajj Reutersgate, the Brian Walski Los Angeles Times fiasco, and numerous others. There was however one difference. The Hajj and Walski incidents concerned major news stories in war zones: Patrick’s photograph was of a bird eating a frog at a wildlife festival.
You can of course adopt the principled position – as the Bee has – that the subject of the photograph is irrelevant, and that any manipulation is forbidden in photojournalism. But if so the Bee – and you – had better start clearing bookshelves. Those precious monographs by Capa, Smith, Khaldei et al? Packed with staging and darkroom manipulation: many of the most historic and respected names in photography would get short shrift at the Bee.
You can also take the fundamentalist position – as the Bee has – that any photo manipulation, no matter how minor, is such a heinous crime that it inevitably merits only the maximum possible sentence, dismissal of the perpetrator. In that case the Bee – and you – presumably take a similarly hard-line stance regarding other more serious crimes. You’ll be in favour of execution for murderers, the chopping off of hands for pickpockets, castration for copyright infringers, that sort of thing.
What Patrick did was undoubtedly wrong, but perhaps worse than that, it was stupid. It should by now be painfully obvious to even the dimmest photographer that if you fake in Photoshop you will be caught: the whole world is watching, and somebody somewhere is waiting to pounce. And whatever they might claim, such incidents often put the news organisation concerned in a rather comfortable position. Closure – at least for the publisher – is easily achieved with an apology packed with references to ethics and core values and branding the perpographer a fraud. “We too have been betrayed dear reader,” runs the narrative, “but the guilty party has been punished: you can trust us.”
This conveniently glosses over one point obvious to anyone who has ever worked in a newspaper, but perhaps less so to the readers the Bee is addressing. Patrick did not publish the doctored image all on his own: he will have submitted a number of images to the Bee photo department, who will have made the final choice for publication. One might expect the photo department to notice any skullduggery: after all, that is in part their job, and Patrick’s handiwork was relatively crude and easy to spot. But the manipulated image sailed by the photo department: the Bee was apparently only alerted by that most reliable of sources, an anonymous e-mail from a reader.
That begs two questions. Does the Bee employ any photo editors who are awake and in possession of functioning eyeballs? And what steps has the paper taken against those editors who approved publication of the Patrick photo?
It would be interesting to hear the response to those questions, but we’re unlikely to get any. The Bee, having placed all the blame squarely on the photographer, is apparently now refusing to comment further. All in all, a neat way to evade any responsibility.
The Shop Till You Drop Award [sponsored by Adobe]
The Naked Gun Award For Photography And The Law
The Pariah Educational Workshop Award
Quote Of The Year
‘We know change is never easy and comes with challenges’
‘I really hope someone will burn in hell because of this.’
‘This is not “like robbery”. This is robbery.’
‘What kind of crackhead business model are we riding on here? We are getting raped.’
‘Rotten news all couched in happy, shiny language. Like getting a beautifully-wrapped turd for Christmas.’
‘Hey, where’s my kiss? I didn’t get a kiss. Did anyone get a kiss? I usually get kissed before I get f…..’
‘We knew when we made yesterday’s announcements that there would be a lot of feedback.’
‘I think you would have been better off saying nothing.’
‘What drugs do you use?’
‘HOW MUCH FRIGGIN PROFIT DO YOU NEED MAN? If you can’t operate on a model such as this you’re just a failure and a failed company. We all know that this company is a fucking cash hog. Getty would not have bought you if you weren’t.’
‘You can’t survive on 60-80% of the profits from a product that you have 0% ownership in? Sad. Pathetic.’
‘So I guess all those glowing announcements about how great iStock was doing and how much profit it was making year after year was all lies.’
‘Money isn’t going to be what makes you all happy.’
‘So THAT is your response to this mess?? Wow, thank fuck you’re not my boss!’
‘Oh, for fucks sake … leave out the pathetic, for-the-camera, misty-eyed rhetoric will you? It isn’t going to wash this time.’
‘Don’t pee on my leg and tell me it’s raining.’
‘Pardon me while I vomit.’
‘Cry me a fucking river Kelly. You’re all a bunch of spineless fuckwits and you’ll get what you deserve.’
The Heath Robinson Award For New Technology
The Stock Shockers Award For Image Misuse
Photo Credit Of The Year
Grand Prix de Folie Photographie
British oil company BP was claiming a major victory last night in its ongoing battle to plug the leak of unauthorised photographs that have been polluting the internet. Since a tiny oil leak in the Gulf of Mexico on April 20, thousands of photographs have been spewing into cyberspace creating a toxic atmosphere that has alarmed BP investors and led to a crash in the company’s share price.
Now, in an unprecedented move, BP has Photoshopped the entire Gulf of Mexico in attempt to allay fears raised by the continuing image spillage. Rollover the image above to see the before and after results of the BP operation.
Several previous attempts by BP to alter images relating to the Deepwater Horizon incident have backfired. One photograph purporting to show BP emergency staff at work in the oil spill command centre was later revealed to be the home cinema hall on soon to be ex-CEO Tony Hayward’s private yacht. Another of a helicopter proved to be of a toy widely available in children’s stores. And the metadata embedded in one image showed the original to have been taken in 2001, leading to speculation that either BP doesn’t know what day it is, or that the oil leak has actually been going on for some 9 years.
Announcing the new strategy a BP spokesman said: “Capping this leak of unauthorised images has been our priority from day one. Frankly it’s impossible to deal with the secondary issue of leaking oil so long as a stream of uncontrolled imagery is polluting the internet and causing widespread damage to the business ecology from which our profits flow. With our security teams in place to prevent the production of new unauthorised images and our own picture staff removing any evidence of oil production in the Gulf of Mexico we may just have turned the corner.”
BP was quick to reject accusations of tampering with the truth over the new strategy. “We’ve done everything we can to prove we’re incapable of cleaning up the mess we’ve created, so it makes sense to deal with perception instead of reality. Most people wouldn’t even be aware of the Deepwater Horizon trickle unless they lived in the affected area, turned on their taps and received 95 octane instead of fresh water for their morning coffee. That’s a tiny minority: we owe it to the rest of the world to set their minds at rest, and this is the best way of doing that.”
Imaging specialists expressed surprise at BP’s newfound Photoshop skills until it was revealed that the company had received assistance from Adobe, creators of the image editing programme. “As we’ve seen, the standard version of Photoshop is too difficult for BP staff to use, and Adobe were happy to produce a modified version with a new Slick Dispersal Plugin more suited to their purposes and skill levels.”
Initial reaction from oil industry insiders to the BP operation has been enthusiastic. “This is exactly the kind of bold strategy BP should have embarked on from the start. Their previous cut and paste attempts have simply been tinkering around the edges of the problem: now they have control of the big picture, which is what matters.”
Others, however, urged caution. “There’s a giant slick of thousands of pictures already out there, cached in Google and leaking through Facebook and the like: it’s going to take years to clean this mess up.”
Photographer takes photograph. Then: crops out 90% of the image. Converts colour to black and white. Artificially adds grain. Dodges and burns to within an inch of its life. Finally clones out about 100 background pixels. Guess which step the World Press Photo judges objected to?
When the story first leaked that WPP had annulled their award to Stepan Rudick for his “Street Fighting In Kiev” series word was that he had removed an object from one of the pictures. WPP later confirmed this, stating that Rudick had been disqualified because “an element had been removed from one of the original photographs”. The element, as we now know, was part of a foot in the background of the photograph.
But in quoting the missing foot as the reason for Rudick’s disqualification WPP are being at least as dishonest as the photographer. It’s now clear that WPP would not even have detected Rudick’s digital handiwork had Ukrainian photographers who had seen the unmanipulated versions of the pictures not tipped them off. Having been alerted WPP were faced with an uncomfortable choice. They could stand by the award, knowing that word would rapidly spread that the winning versions of the photographs were radically different from the originals, and brace themselves for a starring role in the latest press photo fakery scandal; or they could take the apparently principled step of withdrawing the award.
However the latter presented the judges with an uncomfortable problem, for all Rudick had apparently done was follow the WPP reportage recipe book: black and white pushed two stops, burn down, vignette, print on grade 5. That kind of stuff is meat and drink to WPP, so combined with the gritty title – for a set of pictures where no streets seem visible – it’s no surprise the judges fell for it.
The likely truth is that having been alerted by the Ukrainians the judges set about poring over the pictures searching for something – anything – that would provide a viable excuse for disqualification. Fortunately for them they found a couple of missing toes to serve as a fig leaf to cover their own embarrassment.
If WPP are going to ask photographers to justify the validity of their winning entries by providing raw files – and they pretty much have to from now on – then they also need to be able to justify the validity of their own rules. On this year’s evidence they can’t, nor have they even tried to. While Rudick has been smart enough to gracefully accept the disqualification, he’s also taken the opportunity to publicly explain his position and attempt to justify his actions. WPP on the other hand have remained silent apart from their initial announcements, presumably in the hope the fuss will blow over. It won’t, for the simple reason that here will be another contest next year, carrying with it the potential for further scandal. Unless everyone suddenly goes back to shooting film this is not a problem that is going to go away.
Anyone can see through the WPP fiction on the Rudick affair. What nobody can see is a clear definition of what is and is not acceptable in terms of digital manipulation of contest entries. For now, thanks to the way WPP mishandled this incident, the message appears to be:
- You can convert from colour to black and white – sometimes.
- You can crop, but not too much and we’re not going to tell how much is too much.
- Lots of grain and contrast is ok, but don’t overdo it.
- We usually like vignetting, but sometimes we don’t.
- Misleading story titles are fine.
- And never show your unmanipulated pictures to other photographers.