Sally Brownbill

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Archive for July 2015


Photographic copyright

– posted by Sally

Recently there has been a lot of online discussion about Richard Prince’s “New Portraits” reproducing Instagram images, and the potential implications for photographers posting their work online, in particular on platforms such as Instagram and Twitter. 

Richard Prince is a controversial (some might say, notorious) US artist whose practice frequently involves appropriating and adapting existing images, often advertising and pop culture images, and re-presenting them as art works. In 2011, Prince was successfully sued for copyright infringement by a French photographer, Patrick Cariou. Prince had used Cariou’s photographs from his book, Yes, Rasta, in a series of paintings known as The Canal Zone paintings. Prince appealed the decision and his appeal was successful in the US Second Circuit Court of Appeal. The Court of Appeal held that, with the exception of five of the paintings, Prince’s adaptation of the photographs sufficiently “transformed” the original work such that the use of the original work fell within the US “fair use” defence to copyright infringement. The parties settled the case before the original court could reconsider whether the other five paintings fell within the fair use exception.

In the case of the New Portraits series, Prince has screen-capped Instagram posts from a number of users, added a comment, purportedly from his own Instagram account, and made a large digital print. The series was exhibited at Gagosian gallery in New York in 2014 and was shown at the Art Frieze fair in New York earlier this year. The prints were priced at US$90,000 each and apparently were all sold.  Not unexpectedly, this has created enormous controversy, with many of the relevant Instagram users not happy that their work has been appropriated in this way. The Suicide Girls collective amusingly made their own large digital prints of their images reproduced by Prince, and sold them for US$90.

It is unclear whether Prince has sufficiently transformed these images to invoke the protection of “fair use” under US copyright law. It will be interesting to see if any of the aggrieved Instagram users take legal action. Prince is a daunting opponent - a rich and influential artist, supported by powerful US art institutions (many of whom made submissions to the court in the Cariou case). An interesting analysis by Nate Harrison of Prince’s practice from an art theory perspective was recently posted on the American Suburb X site:

From an Australian perspective - where there is currently no “fair use” defence to copyright infringement - it seems clear that, prima facie, Prince would have infringed copyright and an Australian photographer whose image was appropriate by Prince would have a good case against him for infringement.  To summarise some relevant points:
• Under Australian law, in most cases copyright in a photograph is owned by the photographer from the moment it is created, unless there is a written agreement to the contrary. Exceptions to this are where photographs are taken in the course of employment, in which case copyright may be owned by the employer, and where the photographer is commissioned and paid “valuable consideration" to take photographs for “private or domestic purposes”, in which case the commissioning client owns the copyright.
• Copyright is a bundle of exclusive rights, including the right to reproduce and publish the work.
• No registration is required for a photograph to be protected by copyright.
• Posting a photograph online does not waive copyright in the photograph. In most cases, however, posting a photograph on a social media platform will involve granting the platform a licence to use and reproduce the photograph and, in some cases, sub-license and commercialise the photograph (for example, by using the photograph, or allowing third parties to use the photograph, in connection with advertising). You should carefully read the Terms of Service of the relevant platforms to understand the rights you are granting by posting images - and beware that these terms may be varied from time to time, so check regularly. Twitter, for example, gains a very broad licence to its users’ images, including the right to use images for advertising purposes, and to sell to third parties without compensation. Flickr’s licence terms, in comparison, are much more favourable to the photographer.

Nevertheless, once an image is online, regardless of the legal position, it is very easy for it to be reproduced. Taking legal action against unauthorised reproducers of your images can be challenging, particularly where the infringer is anonymous or located overseas - or, as in the case of Richard Prince, is rich, powerful and apparently unconcerned about the risk of legal action! Some practical steps you can take to mitigate the risks include watermarking your images with a copyright notice; only uploading low-resolution versions of your images; including copyright and digital rights information in your file metadata, and only posting on sites which do not strip EXIF or other metadata (in some cases this might mean posting on your own site and then posting links to your images on social media).

Please seek legal advice if you have a specific issue, as the comments above are general in nature and are not intended as advice in respect of any individual issue. The Australian Copyright Council produces some terrific resources for photographers. A handy information sheet can be downloaded from here:
The Council has also recently published a comprehensive book, Photographers & Copyright, which is highly recommended and excellent value at $50: A pre-publication draft of this book was reviewed by Melbourne photographer and lawyer (and friend of The Brownbill Effect), Miles Standish of Standish Legal.

The Brownbill Effect works with Miles Standish, copyright lawyer, who provided this information for me. You can contact Miles Standish

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