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Is She Now Mine?
By Pedro Meyer A few years ago, I received an e-mail from a Swedish
student preparing his final report towards his degree in law school.
He sent me a questionnaire on what he called then the "balancing of
interests in a typical sampling-situation".
He added: " I understand
you work a lot with sampling pieces of old photographs in your work,
and I'd like to get a feel for your attitude in this matter". He was
obviously trying to establish what my criterion was around copyright
issues from the perspective of an artist.
Here are a few of the Q & As.
Q- Could you start
by explaining the process by which you work? (How big are the sampled
fragments that you use? Do you manipulate these fragments in any way?)
What is the reason behind using this method? (Efficiency, making deliberate
references, etc) Do the legal aspects affect the way you work?
Let me start out by pointing out the difference
between how I approach the issue of sampling and what others do. That
difference relies on the fact that for most of the images that I create
with the computer I use my own photography as well. Having said that,
if one takes the issue of the "original" to it's full consequence,
then one is faced with a lot of issues which have not yet been dealt
with appropriately by anyone (from a legal point of view).
For example: unless a particular image is solely
about a landscape, (as in nature) most anything else contains man
made objects and someone who can lay claim to intellectual rights
over the design of the objects depicted within the image. For instance,
most shopping malls in the United States stop you from taking pictures
without specific permission precisely because they lay claim to the
copyright of all that is within their building. No longer is the shopping
mall experience the equivalent of walking down your local Main St.,
at least not in photographic terms.
However, in any traditional "street photograph"
someone could claim that the building in the background was the creation
of a certain architect; or a sculptor, if it happens to contain a
piece of art; or the designer of the advertising in the billboard;
or the coat of the lady walking down the street; or the shoes; or
the bus; car or tram; the chair; the clock; etc. everything can always
be related back to someone who created the depicted objects.
If you want to explore this issue further, just
take at random any set of very well known pictures, and explore how
many objects you can find that would follow in this pattern of thinking.
You will be astounded how we have ever made it this far without everyone
making this into a legal issue. One thing that is sure is that photography
will never be the same from here on in.
Returning to my own work for a moment, I would
say that the fragments that I use within a picture have no relation
to size, they are as large or small as needed, that is the only guide
that matters to me. But I have to point that has to do with the fact
that I am using solely my own work.
The first question that comes up, what portion
of the original H.C. Bresson picture has been taken? Is it only the
little girl in the back of the frame? Or is the frame with the "appropriated"
picture also part of his original image? Because if one could argue
that the framed picture is part of his image, then how does that play
out with regard to my appropriation of his image? A second question,
what is the amount of image that I took from H.C. Bresson's picture?
Are the few pixels that represent solely the image of the little girl,
his? And if they are, then how many pixels can I take without incurring
into a copyright infringement? A question not unlike that which musicians
have to ask themselves when dealing with sampling. How many notes
can be taken from someone's' music without having it considered a
misdeed?
Getting back to the question of manipulation,
as you stated in your initial question, asking if one "introduces
manipulation" at some point. Well, I see this very differently. Manipulation
exists at the very moment the original picture was made, everything
else that follows are only ensuing stages of further manipulation.
Art is about manipulation of matter and ideas, isn't it? And the final
part of your first question is "Do legal aspects affect my work?"
Surely they do. No one wants to find ones' work against a wall of
legal issues. Think of the implications for Henri Cartier Bresson
working today with all the those "lawyers" circling around like sharks
trying to see what they could scoop up to feed their hungry appetites.
Q. "The original
copyright holder should receive payment and credit for all use of
his work, no matter how much is used and in what way. If it's worth
copying, it's worth protecting."
A- You have to separate the issues of illicit
use that damages the pocketbook of the creator, or the reputation
of the persons depicted in the image, or the image maker who stood
behind it. The issue of copyright goes far beyond just economic issues.
I had a situation like this occur to me recently
in Argentina, where a picture of my parents, taken from a magazine,
which in turn was a review of my CDROM disc on my parents' last days,
was used to create a billboard, which was plastered all over Buenos
Aires, inviting the population to come to a rally in memory of an
Argentinean policeman who had been murdered.
The picture of my parents was made out to portray
the parents of this alleged policeman who was killed. I obviously
had no desire to have the image of my parents associated with that
repressive regime or for that matter with any police, especially not
the Argentinean who were known for their fascist methods. So I sued
the advertising agency that used this picture without my permission.
A furor erupted all over Buenos Aires when this event was made public
in the newspapers and magazines, so here you have an example of misuse
of an image, which was lifted from a traditional source, such as a
magazine, and the damage was not so much material as an afront to
my parents memory. What price does that have?
Interesting to observe is that with the advent
of new technologies, many more people knew about this image and therefore
were aware that someone was "stealing" it, and also the fact that
the picture was not taken off the CD ROM as many had suspected, but
in fact from a traditional medium such as the printed page.
Q--An American law-professor
wrote in 1991: "If a neutral observer can recognize the sampled parts,
too much has probably been sampled, due to one or more of the following
reasons: a. He's taken too much (quantity); b. The sampled parts are
too significant (quality); c. The public would assume that the copyright
holder of the original photograph in some way authorized the new photograph.
Are these
reasons relevant? Are the criteria of the neutral observer recognizing
the heritage of the sampled parts one that makes sense?
A- I believe that the statement you quote from
the law professor has more to do with the traditional way of thinking,
of trying to establish how much one get away with without becoming
liable for having broken a law.
I view this quite differently, it's like the issue
of being "a little bit pregnant", you either are or you are not, there
is no "little bit". And again like with pregnancy, it can be either
great or it can be a disaster, it all depends. I can imagine of a
situation of having taken a lot from another picture, and it still
being quite OK. The issue of how much was taken does not determine
this as a sole arbiter.
Let me give you an example, which can turn the
entire argument on its head. I could take the Mona Lisa image and
then create a new image with that reference, there is no copyright
on the Mona Lisa, it's in the public domain. But what would happen
with the image I just created, would I have no copyright protection for my new
image because a substantial portion of this picture is derived from
the Mona Lisa? Or, if my picture was copyrightable, would I then have
by extension made the Mona Lisa my own? And if not, to what extent
would that be true? The question remains: Is she now mine?
Sure the Mona Lisa depicted in the frame is a
copy made by someone to provide the visitor of the wax museum with
the illusion that you are there, witnessing the original Da Vinci
in the act of his creation. But my image is nothing but the sum of
these representations, which in turn have all their own creators,
and so the spiral continues as to the question of what is the final
resting point for this issue of "appropriations". It might be interesting
to note that most people imagine this picture to be the result of
a composite done in the computer. The truth is that it's a "straight"
picture, only one with a very much layered reality. So what is the
difference if I do this in the computer or not?
Q- At what point
would you like to stop someone sampling your photographs? Would it
make any difference if it were for an "artistic" photograph or an
advertisement? Is the matter of "artistic integrity" f.i., - to be
able to determine in what context your picture can be used - more
important than getting paid for the right to use parts of your work?
A- A great Japanese master of ceramics famous
for his breathtaking beautiful teacups was asked if he did not object
to the fact that there were so many lesser artists copying his work.
He nodded, and commented that, on the contrary, he was pleased with
that. In the future, when someone makes a splendid teacup, they will
think it's mine, and all my mistakes will be attributed to those that
made imitations of my work.
Aside of what this metaphor teaches us, I would
say that if someone uses some of my work and acknowledges the source,
as I have done when that has been the case, then I would have no basic
problem. Probably, I would also want to see that my portion of the
image would be a minor part to his or her creation, and not it's foundation.
Now, if the context would be for a commercial
use, I would want to know the exact details of the context. For instance
what responsibility do I have towards those depicted in my own images?
Aside from the economic issues that would have to be dealt with, I
have to retain the integrity of my own work. Today, you can see actors
that have been dead for a long time now, such as John Wayne, appearing
in a new commercial for beer. He might not have liked the idea of
his image coming up in such a context, yet someone is exploiting precisely
such a situation using digital technologies to do so. The same happened
to Fred Astaire, who ended up in an advertising campaign for a vacuum
cleaner, to the great consternation of many.
There are plenty of good motives to protect the
integrity of the work that we are doing, when it today's world the
possibility for unending alterations are there for anyone to apply
without constraint. So the need to protect the work with strong copyright
laws is certainly justified. On the other hand, the mood for litigation
can get so out of hand that the spirit of creativity can end up being
only stifled. It is our outmost desire that the child not be thrown
out with the dirty water.
My final words then, where to wish him well with
his thesis. Hoping that we would have in him a good new lawyer, with
full understanding for the ever more complex issues of representation
in the digital age.
Pedro Meyer's photographs are found in the collections of more than 40 major museums throughout the world. He's also authored several books, including Los Cohetes Duraron Todo el Dia; Tempii di America; and Espejo de Espinas. His column appears each month in Camera Works.
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 ©Pedro Meyer 2001
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