Something for Photographers to think about.

Photographers worry a lot about theft. To be sure, we worry about the theft of our equipment. But in this case, I’m referring to the theft of our photographic images. Actually, I should say “your images”, not “our images”, for two reasons. One, they are not our collective images, they are either yours or mine. And two, it is “your images” being worried about, because I actually don’t worry about the theft of my images (also for two reasons, which I’ll perhaps address another time, especially if someone asks me to).

Anyway, I’m rambling here. My real aim was to talk about theft.

Let’s take this photographic image taken by yours truly (and protected by national and international copyright law so you’re not allowed to steal it even though you’ve sort of already stolen it by copying it to your computer via your Internet browser software). OK, I’m rambling again, but here’s the image:

Grafitti

The question is, can I claim this photo as my own, and claim copyright to it, and claim damages if someone steals this image and uses it for their own profit?

Or, is this copyrighted photo really copyright infringement, infringing upon the rights of the talented (though perhaps not completely within the laws related to vandalism) artist? This is a photograph of someone else’s artistic work, after all. So haven’t I just copied their work? Should I not be allowed to use this photograph? I hope not, because I sort of like it…

Now, I realize this has so far been a little bit of a silly bit of writing, and I appreciate you sticking with me this far. But I do have a larger question to ask, which goes something like this:

To what extent can we legitimately steal someone else’s work to use in our own photographic images? And I don’t just mean to ask about the proper interpretation of the Fair Use doctrine with respect to copyright law. I’m really speaking more philosopically here.

Let’s assume I intend to make money from a photograph (I only wish…). If I photograph a person I need a model release. In the case of private property I technically need a property release. What about public property, such as a sculpture? Perhaps the artist has signed their rights away. But philosophically if I photograph a statue and publish it as my own copyrighted work, aren’t I on some level just stealing from someone else?

Naturally, this is a “shades of gray” topic, which is perhaps why I find it so amusing. We know we can’t just take a picture of someone else’s picture and call it our own art. Well, we can, and it has been done. Just check out the video of Sam Abel talking about “his” photo in the Guggenheim. But my point is that photographers would generally consider it wrong to simply photograph a photograph and call it an original work.

But what if we photograph an interesting pattern in a staircase? Do we need to credit the architect? If we photograph textures in a roadway should we credit the construction crew?

I don’t have answers to any of these questions, but I do find them fascinating.

And let’s not even mention (well, I’m about to) the irony (it is really hypocrisy, but I love using the word irony in the wrong way that most people do because it ruffles the feathers of folks like me who are strict-constructionists when it comes to the meaning of words) that so many photographers who worry about their photographs being stolen also steal music on a regular basis for use in digital slideshows.

Where do you draw the line? Or do you even think about who “owns” the subjects that appear in your viewfinder?



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