If You Call It Art, Is It Still A Crime?
By Mike BowersOctober 4, 2012
Good artists copy, great artists steal. They also can cop 300 hours of community service, a hefty fine and two years' probabation, as one recent court case shows. But in the digital age, photographic copyright is fading fast.
Great images get a life of their own. Like a bushfire they generate their own weather, burning on their own heat. They can jump like an ember in a strong wind, migrating from their original medium, spot-firing onto posters, banners, t-shirts, statues and even sometimes souvenirs. Such images are rare and powerful.
Alberto Korda's 1960 portrait of Marxist revolutionary Che Guevara has burned strongly for 50 years. It's made the leap from protest image to groovy fashion statement — not an easy transition, and one that would probably have appalled its subject. In any city on this planet you can encounter a Che t-shirt emblazoned with that image. London's Victoria and Albert museum calls Korda's photograph, "the most reproduced in the history of photography."
Sharing imagery has never been easier. Those less polite than I might call it stealing, but I'm trying to be nice — at least for now.
Copyright still exists as a law of course, written in impenetrable legalese, but not in practice and not on most of the Internet. I won't make the call yet, but I am close to saying it's dead. Once you've pressed the send button on your i-Thing, your image disappears into the digital badlands, and you have no further say in how it is used or where it will appear.
This is true unless you have the time and money to round up a legal posse and ride after the image bandits. I don't, and most of my colleagues who swing glass for a living don't either.
A United States court ruled in September on a dispute between 42-year-old, Los Angeles-based artist Shepard Fairey and The Associated Press. The question was over authorship of the image used to create what, in the lead-up to the 2008 presidential election, became an iconic poster image of Barack Obama with the simple slogan HOPE beneath it. Fairey made the poster, but the image was another story. The court's decision should ring the tocsin about photographers' copyright, a pealing heard around the world. But I fear its alarm will fade all too quickly.
The HOPE poster was one of those images that strike such a chord they practically regenerate themselves: the 1914 British recruitment poster featuring the then secretary of war Lord Kitchener; Joe Rosenthal's 1945 image of the US flag being raised on Iwo Jima; and J. Howard Miller's 1942 poster known as "Rosie the Riveter" are just a few. These images mark some of the great moments in history, giving them a life beyond what was originally intended.
The greatest of these spark myriad imitations. A website called Obamicon Me has sprung to life in this new digital landscape, which allows users to apply a "Fairey" style to originally uploaded photographs. I have used this site to lampoon Australian politicians on more than one occasion; lots of words rhyme with Hope — Nope, Dope, Cope, even Grope.
Despite the legal storm involving the copyright over the original Obama image, Fairey's 2008 poster is surely one of those enduring images. The US National Portrait Gallery cemented the poster's place in history, acquiring the HOPE portrait in 2009 for its permanent collection. Barack Obama wrote to Fairey in February 2008, thanking him for his work.
In the end, legally, it wasn't the breach of copyright that brought Fairey undone. It was his efforts to deceive the courts about his deception — he had destroyed and fabricated evidence to support his claims that he had not used the AP picture taken by photographer Mannie Garcia to create his artwork.
Fairey should have been riding on the fame wave created by his work for many years. Instead he stood in court on September 7 and apologised, calling his decision to fabricate evidence the "worst thing I've done in my life." He went on to say, "I am deeply ashamed and remorseful that I didn't live up to my own standards of honesty and integrity."
Fairey was sentenced to 300 hours of community service and fined USD25,000, and he is on probation for two years. Federal prosecutors had asked for a custodial sentence, stating, "A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct."
After the case, the president and chief executive of Associated Press, Gary Pruitt, released a statement that said, "We hope this case will serve as a clear reminder to all of the importance of fair compensation for those who gather and produce original news content."
I hope so, too, Gary, but I fear it's a battle photographers are losing.
Also in September, Sydney photo artist Ben Ali Ong ran into trouble, causing a dispute that seems to have close parallels to the Fairey case.
Ong was found to have used photographs purchased through an agency as the basis for some of his art, without crediting the original photographer. The discovery has caused a vicious rift in the photographic community, generating claim and counter-claim about what is and is not an infringement of copyright and the legalities involved. The Facebook pages of many of those involved have become an open sewer, with insults drowning any real debate.
Tim Olsen, whose gallery had represented Ong, spoke to The Global Mail about his disappointment in the artist: "He told me he shot the eagle image at the zoo. I rang Taronga [Sydney's main zoo] only to be told that they did not have a bald eagle. I felt that I could not live with myself if I didn't act."
Olsen stopped representing Ong as an artist. He also refunded money to people who had purchased images from Ong's show.
For his part, Ong maintains that Tim Olsen misheard or misinterpreted him when he said that he took the photos at the zoo, according to an emailed response from gallery owner Sandy Edwards, who is speaking for him on the matter.
She wrote that the question of whether [Ong] lied to Tim Olsen is "difficult issue to get to the bottom of because human emotions are at stake and it involves hearsay and interpretation".
Ong told Edwards, she writes, "that this was to be his third show at Tim Olsen Gallery and that at one of the previous shows he told Tim he had taken images of birds at the zoo. Tim extrapolated that to all the bird images.
"Ben told me he tried to tell Tim Olsen that he had sourced some images online for this show (and he did the crow from the last show that way) and that Tim was sitting with his back to him eating at the time and did not turn round and acknowledge him and said something like 'She'll be right mate'."
It was only when the controversy came out in The Sydney Morning Herald, she wrote, that "Tim Olsen reacted (far too quickly in my opinion) and dumped Ben, something a gallery should only do in much more extreme circumstances than this."
Ben Ali Ong would not speak to The Global Mail. He released a statement after the story broke in which he maintains he has done nothing wrong, stating that he had paid for the images and has altered them. As he puts it, "I visually altered these images from their original form, therefore changing their original intent as a raw stock image. At present I have not been approached by Getty Images. All accusations have come from a third party who has no association with myself or my artwork."
Ong is now represented by the Boutwell Draper Gallery. The Global Mail submitted a question to them in writing, enquiring whether the contested images would still be a part of Ong's new exhibition, but they failed to respond. The images do not appear on the website which displays his work, but there is a statement from Ong in which he talks about his methods: "My process involves a mixture of my own digital and analogue photographs and video, as well as found imagery".
A spokesman for Getty Images, the agency from which Ong sourced two pictures involved in this dispute, told The Global Mail, "The two images in question, of a raven and eagle, are part of the Getty Images collection and were licensed by Ong. The Getty Images end-user license agreement stipulates that a licensee cannot falsely represent, expressly or impliedly, that they are the original creator of a visual work that derives a substantial part of its artistic components from the original image.
"In light of this, we are currently investigating the matter and will be contacting Ong directly to address his usage of the images."
The photograph of the eagle was taken by US photographer Matt Hansen. Hansen sees no grey area. "The thing that's most shocking to me about this whole situation is that Ong went to photography school. You would think he'd have learned a little integrity along the way," Hansen told The Global Mail.
"He was hailed as an artist with incredible potential... and yet the best he can come up with is taking other people's photos, doing a 20-second makeover in [editing program] CS6, and selling them as his own. If that's considered art nowadays then I've obviously missed something."
Edwards defends Ong vigorously, stating she believes the issue hangs on whether Ong has done anything wrong legally. She also accuses the photography community of judging art "out of ignorance". She singled out press photographers in her statement, noting that I, too, was from that camp.
It's obvious that Edwards has been genuinely shocked and upset by the ferocity of argument online, and calls Ong's action a "misjudgment of courtesy". Edwards says some of the online abuse leaves her feeling "threatened", adding: "This is why Ben has chosen not to speak. The situation has become too heated and is based on misunderstanding."
She does strongly believe that the ease of proliferation of images through agencies is at the core of this fight, and, as such, it should be seen as a wake-up call to photographers to further define their rights.
Amen to that, Sandy. It was the one position on which all parties involved in this dispute seem to agree.
Photographer and writer Robert McFarlane has reviewed photography for The Sydney Morning Herald (and previously for The Australian) for the past 20 years. He is an admirer of the vision of Ben Ali Ong, and told The Global Mail the 30-year-old artist has a "unique mind".
McFarlane is not in favour of appropriating images, however; he prefers artists to generate their own imagery.
Speaking from his Adelaide home, McFarlane gave The Global Mail his view of the dispute: "There is a long tradition of appropriation of imagery in art. The trick is to transform it significantly in some way or simply use it as a source of inspiration.
"In centuries gone by painters were trained by going into galleries and learning how to copy [existing masterpieces]. And, more recently, artists such as Andy Warhol directly appropriated pictures — such as a well-known 1963 image taken by US photojournalist Charles Moore in Birmingham, Alabama, of civil rights protesters being savaged by police dogs. Warhol had clearly breached copyright, and got into a lot of trouble because he didn't attribute [the image] to Charles Moore; as Moore's pictures had been published in LIFE magazine this was pretty silly thing to do."
Warhol eventually settled with the photographer, giving Moore some of his other artworks as compensation (one screen-print of a flower later turned out to have been copied from a seed packet), and promised to credit Moore in future. (Queensland's State Art Gallery recently trumpeted the acquisition of this Warhol/Moore image without referring to the notoriety of its creation. An opportunity to bring home this important principle was missed.)
"Then there are artists like Australian photographer Tamara Dean, who is clearly inspired by certain periods in art history, like Caravaggio's paintings. Though influenced by that seductive aesthetic, Dean still takes the trouble to create a personal vision that's completely original and spins off from that source, giving her work a unique visual signature. There is nothing wrong with being inspired like this.
"The unfortunate thing, however, about the Ben Ali Ong incident, is that Ben actually possesses a really quite original vision but for some peculiar reason he made a call that he would appropriate these two images. Perhaps he felt he needed two more images which he quite rightly says he paid for. But their usage in his exhibition, with only minimal changes, was totally inappropriate. Ong did not significantly change or transcend their source and I think that was his mistake. The challenge for any artist is always to find and explore an original moment... to develop a personal vision. Australian photographers such as Steven Dupont, Tamara Dean and Paul Blackmore prove, with their growing artistic archives, that there is always room for new, imaginative ways of seeing."
McFarlane feels that the freedom offered by the Internet is adding to copyright infringement. However the situation is, he concedes, a little "schizophrenic".
"On the one hand you have the tremendous fluency of the Internet, but you have a new generation growing up who feel that everything is free in cyberspace, and it just isn't." He advises young photographers never to sell their copyright. "I get regular requests to license pictures I made as long ago as 50 years [giving him continuing credit and income from the works]. Look after your copyright, preserve your archive, and it will look after you."
I put the question to the Australian Copyright Council for their take, but they declined the opportunity to comment.
The battle lines are drawn and there is a fair bit of heat in the issue, but my hope is that the shouting will die down enough so that all parties can hear each other.
In 2000 I took a photograph at Anzac Cove, which has been used over and over again. That year was the first year that the ANZAC Dawn ceremony was no longer held in the tiny cemetery at Ari Burnu. It was moved to the newly created area above North Beach, designed to accommodate the many thousands of people who now make the pilgrimage on April 25 each year. The incredible crowds were destroying the little cemetery where the service had traditionally been held, right at the point where the Australians first stepped ashore.
My picture was of the rehearsal featuring the catafalque party and bugler the evening before the dawn service. The picture ticks all the boxes: an easily identifiable Australian soldier in a slouch hat, the words "ANZAC" and the beautiful light of a dusk (even though most people assume its dawn). I have actually grown to dislike the image; the flagpole cutting through the image really annoys me.
Recently, I put the photograph into Google image search; this recent innovation searches for where the actual image appears on the Internet rather than for data attached to the image. The results were frightening.
My search came up with 40 pages of around 10 websites per page — all instances of my photo having been reproduced — and many of these websites had not obtained copyright. I do not hold the copyright for this image, as I took the photograph while employed full-time by Fairfax. The lost revenue would surely be useful at this time for that struggling company.
Most of the websites were travel sites, but, most disturbingly, many were secondary and tertiary Australian schools and universities. How can we expect future generations to respect copyright when those in charge of teaching our kids obviously give it little thought?
For my part, I think that both Fairey and Ong should have been clearer from the start about the sources of their images. To omit credit is not just a misdemeanour, as was put to me by supporters of both artists.
If the works had been the written word or original music, and the subsequent artist had used as much of the original as these two artists used of these two photographs, there would be no argument. These would be clear breach-of-author's-rights cases. Somehow misuse of original photography seems to have slipped down the scale of wrong — and that's just not right.
For me, this was an emotional and confronting story to research. I uncovered all kinds of assumptions and abuse, and I was just asking questions. It was hard to not despair for the future.
But then I come back to Robert McFarlane, who never fails to inspire, and leave you with his final uplifting words of advice:
"All the great pictures have not yet been taken."
You are so right, Robert — enough of this rubbish. I'm out there to take one.
Read more of Mike Bowers on iconic images of our time, from the masked man on the balcony at the Munich Olympics to the most significant handful of dust in Australia's history. Then, have a flick through The Global Mail's award-winning photo essays for proof of how much can be said with just one frame.