The Online Photographer

Journalism Experience Will Disqualify You For This Job

Romenesko republishes comedian Jason Sereno's acerbic take on the slaughter of the photojournalists. Note that they, there, and I, here, are just commenting on what happened, not doing original reporting ourselves. The Internet is great for commenting (it profoundly gives new meaning to the old phrase "another party heard from") but isn't supporting a lot of original reporting. Unless you think reporting is repeating things you hear and linking to other reports.

One way we might not be looking at this is one of the ways it might be: perhaps what we're seeing is just one newspaper sinking toward oblivion in a city that's no longer big enough for two papers. Chicago is the largest city in Illinois. I live in the largest city in Wisconsin, the state just north of Illinois, and we haven't had two major dailies for a long time.

According in part to local historian John Gurda's book Cream City Chronicles, the employee-owned Milwaukee Journal, which was published in the afternoon, bought the former Hearst paper the Milwaukee Sentinel, the city's morning paper, following a debilitating strike in 1962. Not willing to let the competition die, Journal Communications continued to operate both papers separately. In 1995, with the afternoon paper faltering, Journal Communications merged its weaker flagship into the stronger and more successful morning paper, showing favoritism toward Journal employees and laying off many Sentinel stalwarts. The Journal-Sentinel has been a morning paper since then.

In any event, it's been 18 years since Milwaukee, about one-sixth the size of Chicago, has had two major newspapers. Maybe it's just that Chicago is finally following suit, in response to more recent economic pressures. Consider that when the Milwaukee Journal was founded in 1882, it competed with four English-language daily newspapers (including the Socialist Leader), and four German-language and two Polish-language ones. Obviously all those went away too.

In a broader sense, digital electronics is laying waste to the established business model in a number of fields, because the economics were all structured around paying for wrappers: the physical carriers of various media. Booksellers sell stacks of paper bound together along one edge; music companies sold disks of black vinyl in cardboard sheaths, and, later, smaller disks of polycarbonate with a layer of aluminum covered with microscopic pits, in a plastic case cunningly designed to be frustrating to open. Watchmakers didn't sell time, exactly—they sold fantastically complex devices that kept track of time and displayed it mechanically, on a dial face that some of my son's friends now have trouble interpreting. Newspapers sold sheafs of newsprint covered with ink.

Photographers, quaintly, sold small sheets of paper with images on them. How long has that been?

If you wanted to own music, you had to buy the wrapper—the physical LP or the Compact Disc. The fact that you had to pay for it made many of the artists wealthy and justified careful production and a whole infrastructure of deliberate selection and marketing—everything from lavish record stores to careful grooming of new acts. The fact that we no longer have to pay for the wrappers is a temporary advantage but a long-term loss, just like the decline of real journalism will be.

Of course, all of these markets and, indeed, all of these human pursuits are constantly changing; change is nothing new. Certainly it isn't for photographers. Nobody's ever really written a business history of photography, but they could, and it would be a tale of opportunities constantly migrating away from practitioners, constant inroads being made against established practices and business models, and skills and expertise continually being eroded and becoming outmoded. Digital electronics have accelerated that process, but it's been going on for a long time, in our field at least. I still miss the weekly LIFE magazine, which I pored over and perused every week and which was an essential component of my photographic education. Its demise, in 1972, was also preceded by many people—hundreds, in that case—losing their jobs.

Mike
(Thanks to Tom Kwas)

[CORRECTION: An earlier version of this post got some facts about the history of Milwaukee's newspapers significantly wrong. —Ed.]

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KeithB: "If Wikipedia is to be believed 8^), Los Angeles hasn't had two major newspapers since 1989 when the Herald-Examiner folded."

Chris Crawford: "My hometown, Fort Wayne, Indiana, is half the size of Milwaukee (about 275,000 people) and we still have two dailies. One of them is locally owned, the other is owned by a big chain."

Mike adds: Somewhat strangely, my town, Waukesha, has its own paper. And we have something like 65,000 people. It seems to keep soldiering on. The last time I tried it, at lunch one day, I was surprised to find that I had read most of the front page articles already—on the web, that morning.

Al Patterson: "Your comment regarding having read most of page one one the web before reading the newspaper is the heart of the problem. The perception is that newspapers sell 'yesterday's news today.' I'm betting some papers only exist to publish legal notices like marriages, divorces, bankruptcy, etc. And, we don't need photographers or journalists for those. It is sad though I do understand why they are doing what they are doing."

Terry Letton: "The problem with newspapers is Craigslist. It killed the classified ads dead. Of course the response of stripping out content to save money in the face of diminishing revenue was pretty much suicide. Before the Internet, a newspaper was pretty much a license to print money, so the idea of just being profitable didn't go down well with the ownership. As you alluded to, after you have read the obituaries there isn't much there that you can't get in multiple other places more conveniently. Therefore the workers get the axe. QED."

Mark Hobson: "I live 30 miles from a small city—pop. 20,000—which has a daily newspaper (two sections, news and sports, for a total of 20 pages). It seems to be doing quite well by focusing almost exclusively on local news—rarely does a national headline make the front page. National/world news is relegated to two pages at the back of the front section. Like the news section, the sport section also focuses on local sports— high schools, university and things like bowling leagues and the like. National sports news is usually mixed in with the local stuff, major sporting events excepted, on inside pages.

"In my opinion, they're doing well because the decision was made to let people get their national news on TV and the web. By the way, they employ at least one photographer of whom I am aware."

Mike replies: A smart, well-designed strategy responsive to real trends and real needs can help an organization survive. Ironically, though, the strategy you describe probably works a lot better for a small city than a large one.

A small local paper also needs to avoid the failing of mine: political partisanship. When the audience is scarce it's tough to willfully cut off half of it.

Expectations of Privacy

I guess this was inevitable. A New York City gallery, Julie Saul, in Chelsea, is showing pictures taken through the windows of peoples' apartments.

The photographer, Arne Svenson, recently inherited a telephoto lens from a deceased birdwatcher friend. He took pictures from his second story apartment across the street from the six-story Zinc Building located at 475 Greenwich Street in TriBeCa.

The residents of the Zinc Building are considering legal action.

Much as I make every attempt to sympathize, and side with, photographers, I think the photographer would lose that case...and I think he should. As I've always understood the law, this is the #1 no-no of shooting in public. If people don't have a reasonable "expectation of privacy" in their own homes, then they really don't have it anywhere.

This might be an interesting situation to follow.

More at The Washington Post.

Mike
(Thanks to Ed Kirkpatrick)

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Robert Hudyma: "In my hometown, photographs of strippers taking a break on the rooftop of a local tavern were published without the knowledge or consent of the individuals who were photographed. It caused quite a stir and a privacy debate at the time they were published and most of the publishers removed the images from their blogs when complaints were received. You can read about it here."

Mike replies: Some might think it's ironic that strippers of all people would complain of privacy infringements, but consider that some of the strippers in question might have been keeping their money-earning activities inside the club secret from their friends, family, co-workers at other jobs, and/or fellow students, and you can more clearly understand the violation.

robert: "I did a story recently for the New York Times called 'The Stratospherians' about living in ultra hi-rise buildings in NYC—the views were incredible. In one picture I made the family's son had a pair of binoculars and I commented on it, and the parent mentioned that almost every single apartment in the nearest tower, every one, had a telescope. 'Reasonable expectation of privacy' depends on what you consider reasonable I guess...."

Photo by Robert Wright for the New York Times

Jock Elliott: "From attorney Bert P. Krages website:

The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks. Property owners may legally prohibit photography on their premises but have no right to prohibit others from photographing their property from other locations.

Mike replies: I presume you've quoted this in defense of the view that the photographer has the right to do what he did. However, you have missed or left out some very important exceptions, which appear in the same document just beyond the section you've quoted:

There are some exceptions to the general rule. [...] Members of the public have a very limited scope of privacy rights when they are in public places. Basically, anyone can be photographed without their consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, and inside their homes.

The document you linked, Bert P. Krages II's "The Photographer's Right," is something everyone who photographs in public should download, read, and keep in their camera bags.

Ctein: "I don't have feelings one way or another about this, because I don't know enough about the specifics, but I can provide some factual legal information.

"First, in the United States, the right to privacy you enjoy in your home has little or nothing to do with whether you are identifiable. It covers persons and activities and objects in your home equally well. Identifiability only enters into the issue when circumstances might otherwise not afford you that right of privacy.

"As an aside, under the law, 'identifiable' doesn't mean that everybody can identify you, it's about whether anyone can identify you from the photograph, in any way. This has been tested with case law. People's guesses here about who  is and isn't identifiable don't have much bearing.

"Back to the privacy issue. The section of the California Penal Code quoted in the Comments Section is basically a Peeping Tom law, and they exist in most jurisdictions. It goes back to that reasonable expectation of privacy.  The key word is 'reasonable.' It's well established under the law that you do not have  a reasonable expectation of privacy around anything that can be observed from a public space without using extraordinary means. What is 'extraordinary' changes with time. Nowadays, moderate telephoto lenses and compact video recorders are quite ordinary, cause they're built into most smart phones. Nobody in a public space can expect such activities might not be recorded. Similarly, anything you're doing in front of the picture window of your house that would be observable from someone walking down the street with said phone is not something you can expect to have privacy around.

"Extraordinary means are prohibited, even by law enforcement. There's a recent Supreme Court ruling around that, relating to the use of thermal imaging to try to determine what is going on in someone's home (note: no identifiability issue involved—it was about activity and contents). They firmly established that was an extraordinary measure that people would not have a reasonable expectation of encountering, and therefore it was an invasion of privacy.

"But maybe not in the future.

"So, what's reasonable in this case? I have no idea. First thing I'd want to know was how long the telephoto lens was; I bet there's some case law around that factor. There's also the interesting question raised here of whether what you do from your lawful private space is the same as what you can do from a public space. I don't know if there's case law around that. Then there's the question of what the expectations were of people living in the  apartments. Someone here pointed out lots of high-rise apartment dwellers have telescopes permanently set up by their big windows. If I were an attorney, I'd be wanting to do some discovery around that. If you know that half of your neighbors own such instruments and regularly use them to peer at other people's apartments, even if you don't do that yourself your reasonable expectation of privacy would be diminished."

Mani: "I love these photographs; for some reason they make me think of Vermeer. I also like the 'problematic' nature of the subject—the induced discomfort, the suggestion of illicit voyeurism. And the artist's (possibly fictional) allusion to a deceased bird-watching photographer, and how that puts yet another layer of meaning over the act of watching other animals (through their windows). Genius."

Of Photographers, Writers and Trademarks

This week's column by Ctein

Three years ago, I wrote an introductory column on the subject of trademarks. It's time to hit that subject again, especially in light of a recent kerfuffle between DigitalRev and Woodman Labs.

I strongly recommend readers review my previous column and the comments therein for a more complete take on the nature of trademark than I'm presenting here.

It's important to understand the trademarks and copyrights are very different entities. A trademark doesn't have to be creative or novel or any kind of intellectual invention. It's just something that uniquely identifies your business and allows you to distinguish it from competitors. That's why there are registered trademarks for Apple (Computers) and Music, Windows operating systems, and McDonald's hamburgers. (You don't have to register a trademark, although that affords additional protections.) You can even register your own name as a trademark, within the scope of your business. Some famous artists and photographers have done so.

(No, I have not registered Ctein. Although the name is close to unique, it's just not all that valuable.)

The same word can be used as a trademark by a bunch of different businesses or products, so long as they are not competing in the same arena. Example—Apple (Computers) and Apple Music. Even trademarked logos can be similar, so long as there's no chance of confusion.

There are the inevitable gray areas in anything involving intellectual property. There's no obstacle to me opening up a portrait studio called McDonald's Portraits. If I name it McDonald's Kids Portraits and adopt a clown as my corporate mascot, I'm pushing my luck. I definitely better not paint the studio red and yellow and put a golden arch over the door!

It's not that the Burger Meister (I was going to say King, but, well, you know...) is in the portrait business. But I'm starting to create the misimpression that my business is part of their empire, and that's a no-no. If your actions sow confusion about who's in what business, you're into infringement territory.

A trademark is very specific. You can't trademark a concept, even a physical one. The Rock 'n Roll Hall Of Fame lost their lawsuit against the photographer in good part because they tried to claim that any photograph of their building violated the trademarked images they used. That's a no-go. The Transamerica Corp. has trademarks on certain portrayals of their signature building. My photograph...

Transamerica Pyramid, San Francisco, CA—1976. Photo by Ctein.

...doesn't violate those. (Unless I start using it to advertise a real estate/financial business, and then we're back to sowing confusion. Don't go there.)

Similarly, the owners of Lone Cypress can't prevent you from making and using photographs of that tree anyway you want, so long as they're made from public property and so long as they're not close to specific renditions that they've trademarked (or you're using them in a business entirely separate from theirs and not likely to be confused with it).

A copyright lets me restrict and control reproduction of my words and photographs, except for some very narrow exceptions that are carved out by the Fair Use doctrine. A trademark, broadly speaking, does not. You can refer to trademarks in any way you like, so long as you're not sowing confusion or leveraging off of their business.

Remember the column I wrote some months back lambasting Apple for killing off Rosetta in Mac OSX 10.7 (a.k.a. Lion)? Do you think I needed Apple's permission before using any of those trademarked words? Technically speaking, they can require me to put the appropriate trademark symbol after each and every use (although that seems to be falling out of common practice), but they can't stop me from using them in my writings. If this weren't the case, it would be just about impossible to write any kind of article that referred to any products or companies without letters of permission from each and every one. Every single piece of writing you see, anywhere, that referred to a business or product would be a trademark violation.

They're not. The law simply does not allow for that kind of restriction on referring to a trademark. (But, again distinguishing between copyright and trademark, they can refuse me permission to use product photographs from their website, if they so choose.)

Now that said...
It's always worth remembering that a lot of people out there are bullies, thugs, or jerks. Some businesses out there will try to strong-arm you into doing things their way. They'll threaten you with lawsuits or worse. That's nothing new for writers or photographers. [Amen —Ed.] I've written in the past about how various manufacturers and individuals have gone ballistic over articles they didn't like, and it has nothing to do with the Internet, digital rights, or anything else. Trust me, those folks will always find something to threaten you with.

Understand that if you decide to give into them (and who would blame you), it's because you know they can beat the crap out of you. It's not because they have the law on their side.

©2013 by Ctein, all rights reserved

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Doug: "A nasty trap that many people innocently stumble into: properly used, a trademark can be an adjective. Why does that matter? Consider these two possible names for a web site that isn't run by Nikon:

nikonsupplies.com
suppliesfornikon.com

Most people wouldn't think there is any real difference between those two names. But legally, there is a huge difference. The first name is trademark infringement. It uses 'Nikon' as an adjective for 'supplies,' and thereby implies that the site is run by Nikon. The latter name does not suggest that Nikon runs the site."

Sobel vs. Eggleston: The Decision

Fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, and promissory estoppel. Those are the bases upon which collector Jonathan Sobel sued photographer William Eggleston in April 2012.

Sobel had paid a reported $250,000 for a large (~17" wide) dye transfer print of "Memphis (Tricycle)," the famous picture that graces the cover of William Eggleston's Guide, one of the landmark American photography books of the second half of the 20th century and a seminal work of color photography. Sobel's print was supposed to be a "limited edition." When Eggleston sold a copy of the same picture—printed digitally, and considerably larger—for $578,500 at Christie's last March, Sobel was not pleased. He sued. Seems understandable.

Judge Deborah Batts of the U.S. District Court in the Southern District of New York, however, dismissed the suit last Thursday, writes Julia Halperin at ArtInfo. Seems the Judge agreed with Eggleston, whose representatives said the larger inkjet prints in the Christie's sale are a new expression of the work.

Bill Eggleston*. Photo by Maude Schuyler Clay

That also seems reasonable, actually. Strictly, an "edition" is a multiple printing of a photograph at one time and using one method. "Limited edition" basically means that you're printing only so many and that's that. Saying it's a limited edition is just a formalization of that reality—you might give each print a number, announce the total number, and mark the prints with some sort of identifier that makes it easier for people to tell they're from that edition. This all comes from printmaking, where many techniques technically limit the number of good copies that can be made.

The art community has long frowned on artists confusing the issue, but at the same time has long been lenient about allowing other editions—as long as they're distinct from the limited one and not likely to be confused or conflated with it.

In that sense the Judge has gone along with standard practice (insofar as there is such a thing) in this case.

Sobel, who owns 190 Egglestons, still disagrees.

He's wrong about one thing, though—he claimed that the sale of the newer inkjet prints diluted the value of his holdings. Unlikely, in our humble opinion.

Mike
(Thanks to John S Krill)

*Anyone know who took this? I spent some time searching, but have not been able to identify the photographer.

UPDATE from Hugh Crawford: "Maudie Schuyler Clay took it way back when.

"Maudie in 1979—Polaroid diptych—edition of one."

Mike replies: Thanks Hugh (and the others who replied and correctly identified Maude). I did try to email her, but have gotten no reply thus far.

She's quoted in this article talking about the portrait. (Thanks to Rodger Dicks for the latter.)

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Alan: "Working in an art gallery that sells limited edition prints, it's a familiar problem. Whilst nominally legal to release new editions of pieces at a later date in different sizes or formats, it always feels a little dishonest. Similarly, many of my clients who bought a 'rare, sold out piece' often experience upset when they see it on the wall a few years later. For my money, make as many editions as one pleases, but I feel they should all be acknowledged on the provenance of every single piece from every edition (unless of course the piece is only ever an open edition and sold as such)."

Chaitanya Patel: "For the record, I am a lawyer, albeit not in New York, and I think that legally (and in my view morally) the decision was the right one because the fact that one edition is limited, does not preclude other editions being made from the same negative.

"However, some of the responses to this post have been not about the law, but about what people feel in their bones to be right and so I'm going to chip in with what I feel instinctively about this. I haven't spent a great deal of time thinking this through, so I would appreciate robust criticism of my position if anyone strongly disagrees.

"I think there's something inherently wrong about valuing a piece of art higher because fewer other people get to see it, or get to see it in the same form. I think as a collector, if you enjoy something and buy it on that basis, you ought to be glad that others will be able to enjoy it as you did, or in a slightly different format.

"If you don't, my view is that your position is selfish and narcissistic and is built upon a foundation of denying to others a pleasure that costs you nothing.

"If your response to this is to say that the collectors' pleasure is not merely one of aesthetic appreciation, but also that he made a financial investment based on the promise of limited supply, then all I can say is fine, but he or she does that within the legal system governing these contracts, and can't complain if they haven't fully understood for what that allows in terms of future editions.

"I also think that artists shouldn't issue limited editions, but somehow I'm less annoyed at them for doing that than I am at collectors for getting annoyed when it doesn't mean very much."

Mark Roberts: "I think Sobel's goal is...exactly what he's achieving now: Great awareness of the existence of a relatively small number Eggleston prints in a now-reproducible medium (dye transfer)...and a subsequent increase in their value. Production of new, expensive Eggleston prints in inkjet media will do nothing but increase the cachet (and price) of the old dye transfer prints. Whatever Sobel is spending on this lawsuit is an investment that will pay of handsomely should he ever sell his prints. And I think he knows this perfectly well."

Links to the Shaw-Pellegrin Controversy

If you haven't been following the Shaw-Pellegrin controversy, this might help you understand today's Ctein column better:

The original critique is here. (The BagNews links are still quite slow—still probably getting plenty of traffic.) The introduction includes descriptions of the contests the picture won.

Executive summary: Michael Shaw of BagNews was approached by the subject of a contest-winning photojournalistic photograph who felt the picture of him probably violated journalistic ethics. The picture was by Italian photographer Paolo Pellegrin of Magnum, from the series about gun violence in an area of Rochester, NY called "The Crescent" (also the title of Pellegrin's photoessay). Pellegrin had used a local photo student as a guide. The photo student introduced him to a friend, also a student, who was a gun owner, and Pellegrin posed the friend in a setting of his (Pellegrin's) choosing, holding his gun. The problem is that the picture was not taken anywhere near The Crescent, the gun owner is not in any way involved in gun violence, and Pellegrin allegedly miscaptioned and misrepresented the picture (and some of the caption material was plagiarized). Shaw et al. researched and wrote about the issue.

Paolo Pellegrin's response is here.

TOP's first article about it is here.

BagNews' followup article is here.

TOP's followup is here.

Ctein's appraisal of Shaw's ethics is just below.

I've indented the TOP links because, although they're pertinent to our readers, TOP is not a player in the controversy—we're just following along and commenting like everyone else.

The issue has been widely reported and commented on elsewhere, at places like A Photo Editor, Poynter, PDN, etc., etc. (as Ctein is wont to say, Google is your friend). Many sites, commenters, etc. have opined that Michael Shaw was negligent in not contacting Paolo Pellegrin prior to publishing his critique, in order to get Paolo's "side of the story" before proceeding. That's what Ctein addresses this morning. Read on!

Mike the Ed.

UPDATE: Got this comment from veteran pj Ken Jarecke: "Mike, I've been a fan of Paolo's, so I didn't want to write this. That said, here's my two cents. Ken."

Best take I've read on the subject so far. And Ken's post drew some particularly incisive and interesting comments, too. —MJ

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What a Journalist Is Obliged to Do

This week's column by Ctein

I am observing an unpleasant amount of "shoot the messenger" conversation going on around the subject of Paolo Pellegrin's professional lapses in his "Crescent, Rochester" series. What it mostly seems to boil down to is the idea that Michael Shaw was in some way obligated to provide Pellegrin with a forum to rebut his (Shaw's) article.

He was not. Not even if one considers the original piece to be straight reporting, and I don't think it's even close to that: You can call it analysis, commentary, opinion, or editorial, whatever you want*, but it is not a simple news article whether or not it includes newsy facts. In any case, that does not matter. The reason it is customary for reporters to contact the subject of an article is to make sure they haven't gotten any facts wrong. It is not because the subject is entitled to a forum in their article, and it is in no way about giving them free rein to spin their version.

Yes, it may be considered a courtesy to contact them, but it is done out of prudence, to "cover one's ass." And, sometimes, it is not done out of prudence, if you have reason to think the subject of your article will attempt a preemptive counterstrike. When a piece is not pure reporting, as Shaw's isn't, it's frequently not even customary. In no circumstance is it obligatory.

By the rules of the business he's in, Shaw did nothing wrong. Had he managed to get his facts wrong by failing to contact Pellegrin, then Pellegrin would be entitled to cry foul. He didn't. He accurately described three main points:

1. The caption was, in fact, incorrect and misleading about the subject. By journalistic standards, it was a minor bit of sloppiness, regardless of how the subject of the photo feels about it—honestly, this isn't about him. But it was, nonetheless, wrong.

2. More seriously, the location is falsified in a way that is materially important. That's a much more substantial lapse. That Pellegrin doesn't acknowledge that is troublesome. His response boils down to, "Well, I didn't explicitly say the photo was made in the Crescent, and besides I don't actually remember where it was made, and besides, who knows what the Crescent really means anyway?" That's a huge load of bullshit. It would be lame coming from a politician. It's unacceptable from anyone who practices journalism. And here again, Shaw's article is factually correct.

3. The real damning bit is the plagiarism. There's been a lot of obfuscation written about this—who really submitted it, was the material meant for publication or not, etc., etc. I quote Pellegrin: "The background text, which traditionally would be for internal uses, and not for the public, is something I gathered from various sources in Rochester and from the internet, including the New York Times."

Okay, so it is Pellegrin's text, and Shaw is factually correct about that also. Pellegrin's copy is almost word-for-word identical to the New York Times. The most that Pellegrin might be able to do (and he doesn't) is show that he pulled all the material from third-party sources, and even then he's still saddled with the problem of having presented someone else's writing as his own.

That is a major no-no, and he knows it. Not just in the field of journalism, though it's especially bad there. You don't do that. Not ever. Not for internal use or for publication. It is plagiarism, plain and simple.

As for Pellegrin's very weak defense that the text wasn't meant for publication, and that he expected editors to rewrite it before using it, that doesn't negate the plagiarism charge. The kindest word I can use for that is "disingenuous." If Pellegrin expected the editors to rewrite his material, that only means he expected to not get caught out in his plagiarism.

Editors and reporters usually rewrite that kind of copy before running it, as matters of space and style if nothing else. But the rules and custom of the business are that if someone sends you a press kit (defining that in the loosest terms), it's for publication and it only contains material that the sender owns and has permission to submit for republication. Unless Pellegrin demonstrates that the material was a.) clearly labeled "not for publication" and b.) clearly labeled as attributable to other sources, he's in the wrong. This is not even close to a judgment call.

From the perspective of professional journalism, Pellegrin's defense is a complete fail. It may very well play well to a lay public, appealing to emotions and inapplicable concepts of what constitutes "fair play" and muddying the discussion with diversionary tactics. Politically it's a sound approach; it's worked for many a candidate running for office. It is neither correct nor appropriate for a journalist.

The best thing Pellegrin could do in this circumstance, professionally, would be to fall on his sword and hope he would only suffer minor paper cuts (likely that is all that would happen). That he took the approach he did is disturbing.

As for Shaw, he got it right. There were several places where he could have easily gotten facts wrong. I think he made some educated guesswork and supposition (e.g., who actually inserted the text that accompanied the photograph), and that is risky. As I said at the beginning, that is why one frequently contacts the subject. But Shaw, in fact, got it right, and when the prose finally hits the page that is all that counts.

©2013 by Ctein, all rights reserved

[*Shaw himself said he's a media critic, meaning he'd call it a critique, presumably. —Ed.]

Ctein's weekly column appears on TOP on Wednesdays.

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Stan B.: "The man's a brilliant photographer, one who has repeatedly put himself on the line and gone the extra mile. He got lazy on this one, cut corners. Fortunately, someone was awake and called him on it; and that's a good thing, both for his profession and for us. Ultimately, it's also good for Mr. Pellegrin—a major wake-up call to remain true to his chosen, professional code of conduct."

Sarge: "Coming from someone who calls himself 'a lousy critic,' this column is a fine piece of disambiguation. Op-Ed should be in another section. I think the category 'Legal and social issues' under which Ctein's column is filed, is TOP's equivalent of an Op-Ed section. Or should there be a separate, categorical Op-Ed section to warn off Moose [who, in a comment, objected to the subject of this column —Ed.] and like-minded readers?"

The Editor replies: This is a blog. We post about all sorts of topics. I am a bit perplexed that Moose reads this site and thinks this controversy has less to do with photography than a post about technique might; that would definitely not be my ordering of priorities. However, that doesn't even matter. If anyone doesn't like a particular post, he or she may simply choose to not read it. There is no penalty for skipping. There will be no test.

TOP is a buffet: help yourself to what appeals to you, pass on what doesn't.

Mark Alan Miller: "My biggest problem is not just that Pellegrin fudged the location and plagiarized his caption, it's that he, a photojournalist, did not report on what he found in the Crescent, as assigned, but instead went elsewhere to find what he wanted, a white gun fan who could be made look like a scary nut case. Have him grab his gun and drape himself in cartridges and get him to pose in a seedy-looking location (really just a garage), with a bit of dramatic lighting to push the message across. A little creative captioning later and the Crescent had an ex-Marine sniper who looked liable to break out in comic book, whoop-ass vigilantism at the least provocation. Am I reading too much meaning into it? The dude in his patriotic T-shirt with shotgun at the ready is a walking action movie/video game stereotype. Pellegrin knows it as well as we do. My problem with Pellegrin is that he created this image from the ground up. This ex-Marine sniper is not to be found on the streets of the Crescent. Actor, role, set, props, none of these are what Pellegrin purported them to be. He didn't just report badly, he passed off creative writing as journalism. And plagiarized part of it."

Brett: "The biggest failing for me, a journalist by training, is that Pellegrin didn't seem to even know where he was when he took that staged photo of the student/former Marine with the gun. If he didn't even understand the story, how could he report it accurately? His follow-up explanation that he was trying to reflect gun culture elsewhere in the city didn't ring true to me. That wasn't reflected in the caption.

"I think this exposes one big flaw when photojournalists parachute into an area and try to understand it. Sometimes they succeed, sometimes they don't. Given the ubiquity of cell phone cameras and the like, it's no wonder that we're seeing more grass-roots photojournalism from people who actually live in a given place. Sometimes they have their own agendas, it's true, but by and large I think they will be able to more accurately report their surroundings than could a person like Pellegrin, no matter how talented and dedicated."

Followup: Pellegrin Kerfuffle

Yesterday, I linked to a BagNews post about the accuracy of an award-winning photo by Magnum's Paolo Pellegrin. Since then, Paolo has responded (weakly, in my estimation) and a number of sites have leapt to his defense.

This morning, BagNews responds to the criticisms. An excerpt:

[A] notable effect from yesterday’s critique was the counter-critique that BagNews "failed to contact" Mr. Pellegrin in advance or "give him the chance to reply." I welcome the chance to speak to that, and to clarify a fundamental misperception people make about the role and practice of BagNews relative to news photography.

What is essential to understand about our role is that we are critics, not reporters. That may be confusing to some because there are not a lot of  practicing visual news or, especially, news photo critics around. But our role and what we do—deemed essential by esteemed colleagues from visual media to academia—is no different from what art critics or television critics or theater critics or film critics do.

I like that point. But then, I'm sort of a critic too, so I sympathize.

Black eyes, or needed checks and balances?
If you don't mind me going all meta now:

To my way of thinking, there's a whole 'nuther can o' worms waiting to be opened here: are prizewinning photographs more often revealed to have been fudged to some degree simply because winning a contest puts the spotlight of scrutiny on them? To what degree are the offending practices simply standard practices that are only revealed on special occasions when outside parties have a reason to look into them?

Since yesterday I've been included in a large private conversation (initiated by Michael Shaw of BagNews) between more than forty photo media professionals regarding the kerfuffle. Several participants in that conversation have questioned whether there should be press photo awards at all. After all, it brings unwelcome as well as welcome attention to a photographer's work, and occasionally (when a winner is disgraced) gives the whole profession a black eye.

True, it does seem to happen with depressing regularity: a photo wins a prize, the photo thereby receives extra scrutiny, and the methods or the ethics of the photographer are exposed and called into question; people then discuss the matter—what the photographer's transgressions were, exactly, and whether he or she overstepped the proper boundaries of journalism.

Funny, but, to me—and I'm an outsider, remember—this is a good reason to have press photo contests. It's really their second best and second most desirable function (the first being to call added attention to especially outstanding work, of course). I'm starting to think contests do a whole lot of good precisely because then the winners are submitted to this higher level of scrutiny. The rest of us then get a "snapshot" read on the current state of photojournalistic practice—we get to see how a small sampling of work holds up under the microscope. And we find out which lines are getting blurred, which boundaries getting pushed, and we get to discuss what we think of it—whether we think it's significant or not, a transgression or not, etc. That's exactly what we're doing now, here, and what the broader photo community is doing.

That's valuable. It's a bit like the function of the press itself in relation to society, only in microcosm, related only to photojournalism itself.

Certainly, when it's agreed that a prizewinner has cheated, it sends a message to the rest of the profession: there are standards; others, down the road, might be watching; don't fudge. Mr. Pellegrin got caught fudging, is all (in this one instance). In a story about gun violence in an area called the Crescent, he posed a friend of one of his photo student guide's with a gun in a setting of his own choosing many miles from the Crescent, miscaptioned it, and called it reportage. Not quite.

If there were never any controversies, then I'd say maybe we could do away with contests. Otherwise, it seems to me we still need them. More glory to those who pass muster.

Mike

Original contents copyright 2013 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site.
A book of interest today:

(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

Speed: "The argument is that contests are bad because they sometimes expose cheaters. The corollary would be that reporting the news is bad because it sometimes exposes cheaters, crooks, liars, philanderers and thieves."

Mike replies: That's my thought, but see Jim Richardson's comment under the first post for a different take on contests.

Burt: "This is a tricky subject, no doubt. I actually started thinking about what good or bad was being done with the World Press Photo awards when they were posted on the NY Times Lens blog several days ago. I was immediately struck by the processed nature of a lot of the photos, and it honestly made me wonder if these journalists were in it to report on a story or to win an award.

"Cut to the other day and the flap over the Pellegrin photo, and the situation has only gotten stickier. Looking beyond the argument between BagNews and Pellegrin, I wonder if the question you present here isn't the most important of all. Do these awards themselves cause photographers to act unethically in hopes of winning an award?  Certainly not all the photographers involved are compromised, but some must have questionable motives. Any time you start to see the level of word mincing/semantics being picked apart in the BagNews/Pellegrin situation I think one knows in their heart that something is amiss, even if you can explain your way out of it with Bill Clinton-esque wording.

"As for the awards themselves—do they instigate this ethically questionable behavior, or do they bring about a beneficial level of scrutiny that would actually help prevent this type of thing? Of course the answer isn't clear, and I'm sure it's a bit of both. Perhaps those who give the awards should consider a method for selecting candidates' work that would reduce the desire for photojournalists to go out an behave unethically? Maybe individuals/magazines etc. shouldn't be able to submit their own work for consideration? Perhaps those giving the awards should be responsible, or submissions should be generated by a group of impartial, non-involved photographers. I'm not sure, but there's got to be a better way, no?"

Bob Keefer: "As a career journalist—writer, not photographer—what I think this tawdry episode illustrates is the sad arrogance of many members of the national media. The process works like this: Decide what the story is, usually based on reading other, more-local journalists' work. Fly in. Do a few interviews and take a few photos, all to illustrate the story you've already mapped out in advance. Fly home and enter contests."

When Reality Isn't Enough

Photo by World Press Photo contest winner Paolo Pellegrin of Magnum.

When I was in photography school, I made a small portfolio called Ocean City, Maryland. It consisted of 12 or 15 pictures (I don't recall now) taken in Ocean City.

Except, one wasn't. One was a photograph of a cabin cruiser under power, taken from above. The picture was very simple: the boat was in the middle of the frame, its wake behind it, and the background was entirely water. It might have been taken in Ocean City—who could tell but me?—but as it happened, it wasn't. It was taken from a bridge in Washington, D.C. of a boat on the Potomac River.

I wrote an essay on this "lie," which was probably the earliest formulation of my conviction that a photograph is like a statement by the photographer, and the truth of the statement is on the photographer—just as with written or spoken statements, he or she can be honest, or not. There was nothing at all inherently duplicitous about that photograph of the boat; but by putting it in a portfolio called Ocean City, Maryland, and not specifying that it wasn't taken there, it became the equivalent of a false statement.

I was surprised by how divided the response was to my essay. Some of my classmates thought my conclusions were obvious; a few hadn't ever thought about it before but were convinced by my argument; and others thought it didn't matter. It "could have been" taken in Ocean City...what did it matter if it wasn't?

I also noticed that some people easily generalized the issue, and others wanted to concentrate on the specific instance.

There are two issues there, it seems to me. The first is that photographs can have content that the photographer isn't aware of. I used the boat to stand for "a generic boat"—it looked like every other medium-sized cabin cruiser of the era to me, and I'm sure it did to 98% of the people who looked at the picture. But of course it wasn't generic. It was a specific boat, of a specific make and model, which had a specific individual owner, specific people on board at the time, etc. It's far-fetched to imagine that someone might need the specific information in the picture, but not difficult to imagine the possibility. To name a trivial scenario: imagine that that boat had subsequently been sold, and the seller told the buyer it had only ever been used in the Potomac River and had never been operated in salt water, and the new owner of boat saw the picture and was able to recognize the boat as the one he bought. He might then think the seller had lied to him...because he had found a picture of the boat taken in Ocean City, which is on the Atlantic Ocean. Granted, it's very unlikely that this would happen. But it's possible. And it shows a general truth: photographs can have content that the photographer might not "mean," or even know is in the photograph.

I'll give you another example. I was photographing once in the Brandywine River Valley, and I got accosted by a homeowner who accused me of taking pictures of his truck, which was parked about 60 feet from me next to the trailer home he had come barrelling out of. I wasn't; I hadn't even really noticed his truck. I was taking pictures of...well, a shadow cast by a wrought-iron railing. The confrontation, however, made me very curious: why had he wanted me to not take a picture of his truck? Was it stolen? Was the repo man out to get it? Had he told his ex-wife he'd sold it? I didn't find out. (He was hostile, and a little drunk, and had no desire to talk to me.) But imagine that I had taken a picture of his truck beside his trailer home. The photograph then becomes evidence that, yes, the truck in the picture was probably sitting next to the trailer home in the picture. What significance that might have had was unknown to me, but his actions indicated that it indeed had some sort of significance.

The second issue is that photographs are evidence of true things in the world—not proof, but evidence—and making them into false statements when it's not clear to others that that's what you're doing essentially falsifies their inherent evidentiary value. (That no one cares might be true, but doesn't change the fact.)

Anyway, all of this is very long-winded preamble to a link I thought was fascinating. As seems to happen regularly now, a controversy has erupted about a prizewinning photo, and there's an excellent discussion of it at Bag News Notes. The article is by Michael Shaw and is called "When Reality Isn’t Dramatic Enough: Misrepresentation in a World Press and Picture of the Year Winning Photo." It begins:

What happens when a World Press Photo and Picture of the Year International award-winning photograph doesn't show what it purports to show? Not through a mistake of interpretation or subjective opinion, but when the facts show the photo wasn't taken where it was claimed to be taken and when the subject of the photo isn't who the photographer says he is. What happens when a city is represented through photographs bearing photographer-written descriptions almost wholly plagiarized from a 10-year-old New York Times article?  Does it make it worse when the photos and the series in question, "The Crescent, Rochester USA 2012," have won multiple awards and the photographer is Magnum's Paolo Pellegrin?

A fascinating article...at least to me! The issue is virtually the same, but with much higher-level players, and considerably higher stakes.

Mike

Original contents copyright 2013 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site.

(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

Jim: "And here is the photographer's response."

Geoff Wittig: "As someone who lives near Rochester and whose son attended RIT, I found this post more than a little discouraging. Yes, Rochester has some substantial drug/crime problems in some neighborhoods, as do all midsized and large American cities. It's no better or worse in this regard than Buffalo or Cleveland. And it has nothing at all to do with Kodak's demise; Rochester's most crime-ridden neighborhoods were no better when Kodak was riding high. Adding some manufactured visual drama is simply beyond the pale.

"The grotesque violation of any standard of journalistic integrity is the obvious issue. The last few decades have witnessed a corrosive decline in confidence in many of our institutions, in many cases for good reason. Since journalism including photography is a vital check on other institutional powers such as government and corporations, this kind of self-inflicted wound is especially greivous. We already live in an era where true/false seem to be malleable constructs. This just adds fuel to the fire."

Dave: "An argument could be made your choices for your portfolio are more an 'artistic license' than the fraud discussed in the article. As an artist, you created a work to describe Ocean City Maryland and used a photo taken elsewhere to demonstrate a facet of that location. Boats, after all, are a major cultural element of Ocean City. Art is what the creator and viewer agree it is. Journalism, however requires an objective standard of credibility clearly lacking in the WPP winner."

Another phil: "I think the problems with misrepresentation (which his photo appears to be), is that it casts a shadow on all photojournalism, and people can then view photographers with suspicion. My rule-of-thumb is, the more accurate the description, the more accurate the photo has to be—if someone titles a photo 'Blackingstone Rock, Dartmoor, taken from the southwest,' I expect to be able to go there and see it myself, whereas if it is just titled 'Rock' my expectations are different."

Dennis A. Mook: "Thirty-eight years ago, and for several years, I was a forensic police detective. Part of my duties was to photograph the scenes of crimes, from minor incidents to homicides. When on the witness stand and under oath, the first question from the prosecutor to me was, 'Are these photographs a true and accurate representation of the scene as you found it?' This was in the days before Photoshop but, nonetheless, photographs could be altered in several ways. For example, we always photographed with a 'normal' lens to keep perspective correct, developed and printed our own photographs so as to keep the representation as close to how we found it, and never altered the photographs in any way. The photograph could not speak for itself, but only represent reality and truth when corroborated by the photographer. That was always necessary as a photograph could never be entered into evidence without the maker swearing under oath that it was both true and accurate. However, the irony lies in the fact that the courts would only accept black and white photographs, as color was too inflammatory and would bias the jury. So, I always added to my verification the words 'except for the lack of color.' We also noted if we used a strobe to light the scene. Looking back now, if color photography would have preceded black and white, monochrome would never have been admitted into evidence, as it is a far cry from reality as we found it.

"Today, the same standards are required. The image cannot represent the truth unless sworn to by the individual who made it. Should this be a requirement in non-judicial uses of photographs? I don't know but it would take the 'truth and accuracy' issue to a higher level."

Random Excellence: Stan Banos

Apropos yesterday's post about photographers' rights, Stan Banos sent me this picture. The building is the Armed Forces Recruiting Center in Times Square in Manhattan.

Note what's on the wall just above the woman taking the picture.

Stan said that from where he was standing when he took this, he could see eight surveillance cameras.

Just sayin'.

Mike

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Original contents copyright 2012 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Not Such a 'Free Country'—For Us

It's a sign of the times and a mark of shame against the character and honor of this country that not just every photographer, but every citizen, needs to read this....

I've come to believe that the only solution to this problem is that there must be penalties put in place for violators—that is, we need laws stating that any law enforcement official, or any person acting in a security-providing role, who illegally interferes with, threatens, impedes, arrests or detains any citizen for photographing legally in public, be punished with something such as suspension for ten days without pay for the first offense, thirty days without pay for the second offense, and firing for the third offense. Something like that.

Photographing in public is legal in a free country and public officials do not have the authority to systematically and persistently deprive citizens of rights clearly granted to them by their Constitution. Obviously, even systematically informing police departments about the rights of citizens to photograph isn't doing the job, even in the relatively rare instances where that's being done. Photographers are becoming an illegally persecuted class of people, for utterly no good reason.

Only if there are consequences for doing it will the persecution of photographers in public subside.

Mike

NOTE: This post is not an open invitation to discuss generally all the shortcomings of law enforcement, government, or the U.S. as an entity. Comments that overstep the boundaries of the present topic by too great a margin won't be posted. Thanks. —Yr. Friendly Ed. Mod.

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Featured Comment by Jeroen Grobben: "At least Washington D.C. Police Chief Cathy Lanier gets it right. fstoppers had this interesting article on their site on July 25 this year. Here's the link. She even went so far as to issue a directive (linked in the article) which instructs her officers on the rights of photographers and the public. Yay for her. Too bad the world is such a crazy place nowadays. Why can't we all just get along?? Yikes...Jeroen, way up north near Ardrossan, Alberta, Canada."

Response by MartinP: "I suppose I am the hundredth person to point it out, but the comment by Jeroen Grobben over a 'photographer friendly' statement by a senior police-officer omits that the statement was made as part of the settlement of a civil-rights lawsuit which was lost by the police department in question. The ACLU supported the case."

L'Affaire de Emily White

I've been following with considerable interest the whole Emily White furor. The nutshell version: an NPR intern named Emily White admitted that she has more than 11,000 songs on her iPod but has only ever paid for 15 CDs. This triggered an upswell in the ongoing debate about file sharing, piracy, ethics, and practical issues pertaining thereunto, most notably an impassioned criticism from David Lowery, the frontman of two rather obscure bands called Camper Van Beethoven and Cracker.

Many different people and sites have weighed in on the matter. The most interesting take I've found yet is from Jay Frank at billboard.biz, who argues that people aren't stealing David Lowery's music because they've never heard of Camper Van Beethoven and Cracker (I happen to have one CD of each, both legitimately purchased), and most people don't steal music if they're curious about it, they just stream it and move on because they don't want it cluttering up their hard drives. He thinks that the decline in revenue experienced by musicians is due to greatly increased competition and a diluted market, and that fame and name recognition makes more of a difference to musicians' bottom lines than questions of who pays how much for what. He makes a reasonable case. But then, so do Lowery and, for that matter, White. And so do many of the thousands of people who have commented on this issue at dozens of sites.

It's the carrier you can charge for
Be that as it may, the "meta" issue that's roiling the waters in the arts business (which were never placid to begin with—let's get out in front of that) is that the way producers control the trade in creative content is to control the carrier medium. That is, you don't buy music, you buy an LP, or a CD, or a cassette tape; you don't buy the words of a novel, you buy the bound stack of paper they're printed on. You don't buy the news, you buy some folded-up sheets of newsprint. And every upset in the way the content is carried creates shifts and changes in someone's business model. Lately, of course, digital dissemination has been raising particular havoc with all sorts of formerly reasonably settled business models. Newspapers and magazines are suffering; music labels are howling that piracy is their ruin (never mind that a case could be made that music labels historically pirated the work of musicians in the first place); and Amazon with its Kindle, and more broadly the whole concept of the electronic book, are like a vast black stormcloud on the horizon of the book publishing business.

The implications of all of this would take an essay of book length even to outline. Not to mention that everybody's got an opinion about every little facet of it, which could consume further infinities of verbiage. Each form of content is different, and the changes in each are different, and the implications of all those changes are all different. The situation is...complicated.

But the main thing, to me, is that it's usually the carrier, and how it can be monetized, and how the proceeds are divided, that matters; and, in my view, the particular circumstances of the carrier in each case is essentially arbitrary, almost random, depending on some transitory state of technology and on the greater or lesser effectiveness of the business model, the rules (laws, customs, and contracts) that are in place, and the state of competition.

I personally have a curious relationship to these issues, as I used to work in magazines and now deliver content to an audience without needing to pay overhead. But on the other hand, the most effective way to monetize this site has been by selling prints, which are not images but pieces of paper...carriers for an image and a signature. So I can sort of see both sides of these issues.

Imagine (not the Lennon song)
I just wonder what photography might be like if, by some happenstance, the carrier medium for a photographic picture were less like what it is, and more like, say, a 45 rpm single record in 1966. I can't imagine by what means it would happen, but imagine if, every time someone viewed a picture taken by you, you were to receive a dollar, or a cent, or even 1/100th of a cent. Or imagine if a "like" on a social media site was worth a nickel.

Most photographers wouldn't become rich overnight—I wouldn't—but billions of dollars would begin funnelling toward the producers of photography that aren't being funnelled in that direction now. The transformation that such a state of affairs would visit upon photographers, and photography as a whole, would be marvelous to contemplate, a long domino effect of resounding implications.

And why isn't that the way it is? Well, it just isn't, that's all. When I was a boy an LP cost $3.99, and it was pretty much the only way I had to hear music of my choice when I chose to. Those who produced and sold the carrier—the 7" or 12" disk of vinyl in a cardboard sleeve—controlled the market, and commanded my dollars. They don't any more. Now you can sample every track for free and buy just the tracks you choose and choose not to pay if you like. Why the difference? Just because that's the way it is now. It was one way back then and now it's changed. There's no justice in any of it, necessarily, only circumstance. In 1880, songwriters died paupers; in 1980, they made vast fortunes; in 2080, who knows? For a time, certain parties benefit more; later, other parties do. In one period, everyone makes money; in another, no one does. It all seems very arbitrary to me, a complex shifting mass of competing desires and rules and technological effects and social customs.

I don't have a conclusion here. This whole complex of issues is far too vast, as I say, to even delineate in a short blog post of a few hundred words. It's interesting to think about, though. It's possible that Jay Frank's outlier conclusion might be right. In a world of intense competition and a surfeit of product, "the game is about exposure and awareness...It's not about royalty rates, thievery, or even quality of music. It's all about how [we] get people to know [we] exist."

In the meantime, I have 12,145 piece of music in my computer library, several thousand CDs (many in boxes in the attic), and several hundred LPs. And I paid for almost all of them. Maybe a few handfuls of things here and there I got for free, but they're very much the exception. In some cases I've paid two, three, or even four times for the same piece of music. I pay a fair amount to own photographs, too: I buy books. It's not enough to make photographers rich, for the most part, but at least it's something.

Mike

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Featured Comment by Rob L: "And then there's the example, in extreme edge case form, of Amanda Palmer and her amazing Kickstarter campaign. Very much in line with the 100 or 1000 loyal fans concept discussed here a while back, or several other projects. Perhaps we're seeing a return in some small measure to the era of patronage, where instead of paying à la carte you support the artists you favor."

Featured Comment by almostinfamous: "Well written, Mike. I like this take on the whole brouhaha as well."

Featured Comment by Sarge: "What creates value?

"Conventional business models can be relied to work and endure in markets for tangible goods and services where sellers also tend to dominate. The fewer sellers there are in an industry, the more dominant they become. They can create demand, limit supply, set prices (that they charge consumers or pay producers).

'Also, tangible goods are consumed exclusively. What I eat is no longer available to anybody else. What I own I have exclusive title to. Tangible goods (and services) have both intrinsic value (to the buyers) and scarcity value (to everyone else) which is why consumers are willing to pay for them.

"On the other hand, digital products tend to be virtual 'free goods' with unlimited copies. Downloading a music file doesn't diminish the supply available to others. There is no exclusivity. Why pay good money for something that is accessible to everyone else?

"Non-exclusivity begets market failure. Which is why Steve Jobs' iTunes business model, charging a dollar per download for music regardless of its intrinsic value, works.

"As for TOP's 'business model' enduring in 'the game of exposure and awareness' (Jay Frank) 'in a world of intense competition and a surfeit of [blogs],' its 'intrinsic value to its readers' will have everything to do with it. Some 35,000 folks will be reminded next week what its intrinsic worth is to them."

Featured Comment by Peter Klein: "The Internet has made it possible for the public to steal in such volume and with such efficiency that the concept of intellectual property has become almost meaningless. Yet if your work isn't on the Internet, nobody will know it exists.

"I wonder if we'd have The Catcher in the Rye if J.D. Salinger was forced to give the book away on the 'Net to gain exposure. Or sell to his publisher 'all rights to the work and all its parts, in all forms, original or derived, in all media, now existing or created in the future.' Maybe he could make a living on the sale of Holden Caulfield coffee mugs and T-shirts. If the publisher's lawyers didn't lock those up, too.

"Who decided that Internet entepreneurs are Masters of the Universe, and artists, writers, composers and photographers are mere 'content providers?' Don't get me started...."

Mike replies: Your comment 'yet if your work isn't on the Internet, nobody will know it exists' reminds me of an urban planning paradox that emerged a handful of decades ago. Town centers were getting congested and were built up, so when it came time to put in the expressways, they were routed around the edge of many towns. Whoops! What happened was that businesses sprouted up around the bypasses and the old business districts withered. I used to live in a town in Illinois that was a textbook example of this. The historic town square was so pretty it had been used for movies (Groundhog Day was filmed there), but the County had outgrown the courthouse and it took drivers too long to get through town. So the main road was routed in a semicircle around the edge of town and the courthouse was relocated on it. When I was there, not only were many businesses failing in the old town square while the wraparound road had become a stripmall hell, but when I made comments about how pretty the town was, I'd get blank stares from people from Chicago—all they knew of the town was the wraparound road with the strip malls; they'd never seen to the old town center. So to them, the town was an ugly little blight on the landscape with no charm or distinction.

So it is with the Internet. It's where the people are now—it's where everybody hangs out. It's the main road skirting the old town center. It's not that the old models are being attacked or aren't being sufficiently valued, it's just that they're withering from lack of attention...the traffic has been diverted, so to speak.

Featured Comment by David Comdico: "Thanks for link to the Lowery article. I found it a good corrective to the billboard.biz article which I read first and loathed. I was, however, very sad to read about the suicides of Vic Chestnut and Mark Linkous. I have a couple of Sparklehorse CDs on my rack and they have enriched my life much more than the 15 bucks I paid for them. I can think of numerous items I've purchased since for an equivalent amount that are in a landfill someplace, enriching nothing, not even the soil. Surely, the Jay Franks of the world can provide us nothing more than a Panglossian rationalization for our guilty conscience. The brutal logic of unstoppable technological advancement and displacement is the 21st Century's version of Manifest Destiny."

Copyright Reminder Reminder

Just a modest reminder: for a copyright notice of visual works to be valid in the U.S., it must contain three elements: 1. the word "Copyright" or the abbreviation "Copr.," or the C-in-circle copyright symbol [©]; 2. the year of publication; and 3. the rights owner's name, all placed in close proximity to each other.

I just thought I'd mention this because in looking at pictures on the web, I often see a "C" in parentheses, i.e., (c), or this: "© All rights reserved." Neither are valid copyright notices.

Copyright notice used to be mandatory—you lost your copyright if you published your work without it. For works first published on or after March 1, 1989, it's optional, but it's still a good idea, because it prevents infringers from using the "innocent infringer" defense—that is, whoever rips you off can't say they didn't know. Judgments against innocent infringers (and thus, the judgment you are awarded) are often reduced by the courts.

(Source: Circular 3 of the U.S. Copyright Office.)

Mike-who-remember-is-not-a-lawyer

P.S. This post "© 2012 by Michael C. Johnston"

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'Greeks have been savaged and ridiculed in every possible way these past years and months'

"When the financial crisis hit Greece, Christos Sarris put aside his cameras to volunteer for an organisation giving assistance to some of poorest families in Athens. His interviews and observations convey the plight of a once proud community while also revealing the frightening despair of the nation...."

Read more about Christos' project at foto8. Unfortunately the pictures are somewhat buried in the haphazardly made video, but this is the first 'intimate' view of the Greek people I've seen after months of reading with interest about the wider political and economic crisis.

Mike

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Morality vs. YOUR Morality

As happened with Bruce Gilden, as happens when we run into copyright issues, there were a few commenters the other day who objected to the ethics of John Slaytor's train pictures—he took high-speed pictures from the outside of people in passing trains who were unaware they were being photographed by him. Brilliant idea, I thought, but some others were uncomfortable with it.

Let me paraphrase myself to characterize some of the typical reactions in these cases (I was writing about copyright, but it applies to most ethical issues that affect photography):

There are a couple of main streams: 1. People don't understand the law. 2. People think the law should be different. 3. People think each case should be up to them to decide, based on what seems reasonable to them in the particular instance. 4. People don't even grasp the basic facts of the case under discussion, but are willing to pop the cork on some bottled diatribe they've got inside them that's been waiting for any old excuse to bubble over.

Um...sorry. Just the first three.

I was suggesting then that it doesn't matter how you feel about an issue, it matters what the law allows and doesn't allow.

And that's true. But here I'd like to suggest the opposite: that your feelings about the appropriateness of photography in differing situations is something you should pay attention to and respect. If you feel squeamish or uncomfortable about the implications of any kind of practice of photograhy, then you probably shouldn't do it. Your personal feelings don't necessarily prove that there's anything wrong with it, or that you get the right to dictate to others whose lawful behavior you don't agree with (although of course it's always an option to visit them with your disapproval); but it's probably a good clue as to how you ought to be working.

We all have different feelings about the exploitation of others and about correct and proper behavior. It's perfectly legal in the U.S. to take pictures of complete strangers without their consent and then exhibit and sell the photographs, as long as various restrictions aren't broken and certain uses aren't breached. Put simply, it's part of free speech. And it's true that we don't get to dictate to other photographers how they're allowed to work. But your own ethical feelings, I would argue, are an indivisible part of your own art or practice of photography—or should be. How we approach those feelings is part of how we approach the world and our own lives within it, and, in that sense, observing our own moral and ethical feelings are an important aspect of what we're doing, worthy of respecting. Maybe you want to be more fastidious than the law demands; maybe politeness is as important to you as lawfulness. So very well then.

Such considerations are not limited to the photography of people. Wildlife and plant life can potentially be included. There was a case a number of years ago concerning a landscape photographer who chopped down small trees that were blocking the view of his camera, and people had feelings about the ethics of that practice, too.

Your own ethics can go over and above the law, which is only a sort of practical baseline (practical, since violating it can incur penalties). For each of us, how far we'll go is a personal matter, and for each of us I think it's worth thinking about and formulating our own ethics.

Although not the topic of this discussion, it's worth mentioning that ethics are in part a public relations issue, too: the feelings of other people in public might possibly have an impact on you, and they (the public) also might be ignorant of the law. We've pointed out many times that not even all law enforcement officials are clear about what is and is not lawful when it comes to photography, and the general public is much worse. (Some photographers go so far as to carry Bert Krages' "The Photographer's Right" flyer to inform police on the spot of the law.) But there we're talking about expedients, not about formulating and following your own ethics for sound ethical reasons.

Going back to the specifics of what's allowed and not allowed according to the law, it's worth educating yourself, especially if you suspect you're on shaky ground and might need to defend your actions. From that earlier post again:

I'd like to suggest again a few books that we've recommended in the past—Photographer's Legal Guide by Carolyn E. Wright, and Bert Krages' Legal Handbook for Photographers: The Rights and Liabilities of Making Images (note the lack of international links: although copyright law is international to a considerable extent, Carolyn and Bert are both U.S. attorneys writing for a U.S. audience. If you live somewhere else, you should find yourself a good resource that fully reflects local expertise and applicable laws.)

I remember finding Bert's book a little more informative, but that might be because it contained more stuff that was new to me at the time. Carolyn, of course, is the author of the Photo Attorney blog, a leading blog for legal issues affecting photographers.

For a more in-depth treatment, try Content Rights for Creative Professionals, Second Edition: Copyrights & Trademarks in a Digital Age, Ctein's bible on the subject and his top recommendation.

Knowing the law is a good basis for proceeding, but it's worth cautioning that in some instances, law enforcement is going to make it up as they go along. There was a case locally where a man was taking pictures of swimmers at a public swimming pool from a car parked a considerable distance away. When questioned, he admitted to the police that he used the pictures for sexual gratification. As far as I could discern from the newspaper (and I don't think I've mentioned yet that I'm not a lawyer), what he was doing was not actually illegal, merely distasteful (he was on public property, the swimmers did not have an expectation of privacy, he was not trafficking in the pictures); but he was arrested and thrown in jail all the same, his camera confiscated, and so forth, to universal public approval. So, as always, beware—the law, too, like our personal feelings, can sometimes be extemporaneous.

Mike

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Featured [partial] Comment by Tim Auger: "One of the problems in this intolerant and litigious age is that people do not distinguish between the ethical and the legal. You do not have the automatic right to impose your personal ethical code on others with the force of law. You have to accept that others may have an ethical code different from yours. Many people find that difficult. That's why there are so many calls to ban things."

Featured Comment by Joe Kashi: "TOP readers should be alert to other possible legal problems with street and public place photography.

"Depending upon the situation and the law of any particular state, a person that's photographed may well have some private rights that non-lawyers tend to overlook in their stress upon 'First Amendment rights.' Private rights claims can cause potentially serious legal difficulties for photographers.

"We should remember that other persons have rights to their personal sense of dignity and privacy and that other people also cherish their 'rights.' Photographers are not the only people with 'rights.'

"The law varies from state to state and situation to situation, so one can't give any legal advice in posted general comments, only a general heads-up to be alert to some potential problem areas. While it is generally true that one has certain general rights to photograph in public places where there is no expectation of privacy, that's the beginning, not the end, of the story.

"Generally, First Amendment rights only pertain to government action, and less so to private civil actions against the photographer in the event that a private person decides to sue the photographer because they're unhappy about their depiction or a perceived invasion of a personal right.

"Without an unrestricted release from the subject, fair use of street and public place photographs usually extends only to non-commercial use such as in exhibitions and journalism. If there is any commercialization of the image, then the private compensation rights of the person(s) photographed likely arise, to the detriment and expense of the photographer.

"There are other potential problem areas, and these arise from tort law. An unhappy subject may be able to sue the photographer for unfair use, invasion of privacy, holding a person up to ridicule, or a perceived unfair or distorted depiction of them. First Amendment 'rights' usually don't protect a photographer against claims like that. Even if such claims are later dismissed by the court or by a jury, defending against them is expensive, time-consuming, and nerve-wracking.

"Again, private legal remedies vary greatly from state to state, and upon how a jury or judge reacts to a specific photo, so no one can give any legal advice in comments like these except that everyone should be alert of potential private rights. In a very real sense, the best guide is to recognize that others have personal rights to dignity and privacy that everyone, including photographers, are expected to respect."

Featured Comment by Maris Rusis: "Privacy? In public I don't expect it and don't want it. Anyone can take my picture. I think it a reasonable bargain in a liberal society that people can move about freely but the price for this freedom is the presumption of good behaviour. Should individuals be witnessed and recorded doing shameful or repugnant things then that is to their own account and not a slur against the witness. My experience with street photography suggests that what people really want is not privacy at all but rather assured anonymity."

The Plot Thickens

"There are a lot of people out there who are pissed...."

—Robert Mann

So you remember that I posted in passing about an Eggleston picture I liked that was being offered for sale for a big chunk of money. Then about the prices the sale actually fetched, which were in excess of pre-auction estimates.

Well, little did I know this would turn into an actual story.

It turns out that Eggleston had offered those same pictures before, many years ago—in limited editions. (When his dealer was Harry Lunn, who, quite by coincidence, we mentioned just a couple of days ago.) Uh-oh. According to gallerist Robert Mann, a lot of collectors are highly annoyed that new prints of their supposedly limited edition prints are coming onto the market.

Especially one Jonathan Sobel, described as "a major collector of William Eggleston's work," who, according to the developing story from PDN Pulse, "filed suit against the photographer yesterday in a U.S. District Court, accusing him of devaluing his vintage dye transfer prints by selling new, large-scale pigment prints of many of his iconic works."

You already know my opinion about limited editions. I think, to quote myself, "they're stupid"—from the photographer's point of view, that is. I don't think photographers should voluntarily limit their ability to profit from their own work just to benefit dealers and the secondary market. But I'll also opine that, once you set a limit, you should stick by your word. I gotta go with Sobel on this one—I think I'd be pissed, too.

PDN suggests checking back for more on the story later.

Mike
(Thanks to Ahmer Inam)

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Featured Comment by Jeff Grant: "I like the Brooks Jensen method: Editions. The first lot would have been Edition 1, and the new ones Edition 2. Problem solved."

Featured Comment by Kevin Purcell: "Artsbeat has a couple of extra details:

Last month, three dozen of the larger-format prints—40 by 66 inches instead of the original format of 16 by 20 inches....

"So they use a different printing technique and a (very) different size. I didn't realize how 'small' the original dye transfer prints were.

Mr. Eggleston’s lawyer told The Wall Street Journal that the lawsuit had no merit and that printing vintage works in new formats falls within his creative rights.

"Huffington Post has a very detailed overview on this topic too.

This was the first sale of these new pigment prints. "First time seen and sold," Read said, adding that his gallery plans to exhibit other to-be-created large-scale pigment prints from older negatives by Eggleston this fall at Frieze London.

"That might be another reason for Sobel trying to get on top of this.

"Plus there is a New York State law covering this but it excludes different sizes, production types and numbering systems (arabic versus Roman). Why did Sobel file in Federal court?"

Featured Comment by Chris Crawford: "I disagree with Mike and the collector here. Eggleston's new prints are a different medium. Dye transfers are rare and won't be devalued. If he did new dye transfers, then I'd understand collectors getting upset."

Featured Comment by Bobby Salmon: "It doesn't sound like Sobel has much of a case, for reasons already mentioned above. The concept of limited editioning is to me a false one and violates the whole nature and spirit of the photographic medium. Photography is the most democratic (with a small 'd') art form, the process best suited to mass printing and to providing art to larger numbers of people and for multiple end purposes. I'm not saying to give prints away for free, but artificially constraining photographic works into limited editions is an unnatural attempt to force photography into the mold of painting or screen printing. If any editioning is to be done at all, then, as mentioned in Jeff Grant's comment above, Brooks Jensen's method is the only one that makes any kind of organizational and honest sense."

Featured Comment by Ahmer Inam: "...And continuing this saga, PDN now has an interview with Mr. Sobel who does make some compelling arguments."

'Inquiry Grows'

The latest at Dealbook about the Olympus scandal says "the inquiry has now grown to touch nearly every corner of the federal law enforcement arsenal," including Federal prosecutors in Manhattan, the F.B.I., and the Securities and Exchange Commission. Authorities are interested in whether the payments were kickbacks to Olympus officials, money laundering, or something else illicit.

Olympus held a press conference in Tokyo yesterday, at which Executive V.P. Hirashi Mori (one of the directors whom former CEO Michael Woodford called upon to resign in his original internal memo, by the way) "did most of the talking." The article notes that "Tensions flared at the news conference, as reporters berated Mr. Takayama [the newly appointed Olympus president] and his colleagues for long-winded responses. 'What is the point of this press conference if you are not going to address the main issues?' one reporter asked."

In a related note, remember that expert I mentioned who I talked to about the scandal? Based on what he's read, he has now changed his mind and believes that something other than accounting fraud occurred (or is occurring) at Olympus.

Mike

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Quote o' the Day

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public place is a basic, vital, and well-established liberty safeguarded by the First Amendment."

—The federal First Circuit Court of Appeals in Boston,
in a recent ruling
Source: American Police Beat

-

Mike
(Thanks to R. J. Carter)

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Featured Comment by Marty: "Pardon my cynicism but tell that to the police officer and his partner that are in your face demanding your 'film' or they'll 'confiscate your camera.' Been there. Best to go for the 300mm with 2X extender and be nowhere nearby."

Is Bob Dylan a Plagiarist?

If my respect for Bob Dylan were a boat, it would be leaking.

First there was the brouhaha over Dylan's first number one hit in 30 years, "Modern Times," when many of the songs on the album were tracked to traditional sources despite being credited to Dylan. Then many of the lyrics on the same album had to defended against charges that Dylan lifted them from an obscure 19th century poet named Henry Timrod.

Now there's a show of Dylan's paintings at Gagosian Gallery in New York. The Gallery originally said that the paintings provided "firsthand depictions of people, street scenes, architecture and landscape" observed by the singer during his travels in Asia.

Trouble was, they weren't firsthand—Dylan copied them from photographs. Here's one example, of a painting copied from a photograph by Dmitri Kessel, and here are a couple more, copied from photographs by Henri Cartier-Bresson and Léon Busy.

At least five and maybe six of the paintings in the Gagosian exhibition were based on original historical photographs in the collection of Okinawa Soba, who posted them on Flickr (he thinks a sixth is questionable as Dylan's source).

Dylan paintings at the Gagosian Gallery

Historical photo from the collection of Okinawa Soba, from Flickr

Photo from Vietnam by Léon Busy, from the Musée Albert Kahn

Another Soba photo from Flickr

It's plagiarism, sure, but it's Bob Dylan, so he'll be forgiven. After all, "The immature poet imitates; the mature poets steals," said the great modernist poet T.S. Eliot...

(...Except he didn't. The quote is "Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different," and it was written in a biographical essay by Eliot about one Philip Massinger, a poet who, it turns out, was very "mature" himself.)

Mike
(Thanks to many readers)

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Featured Comment by Sergey Botvin: "If only the painter (Dylan) could force himself into not 'forgetting' photographer's shadow (first picture, lower left corner). Now that would be some real maturity."

Mike replies: I noticed the same thing! The biggest compositional change he makes in any of the paintings I've seen—that I can see, anyway—was to remove the shadow of the photographer from that picture.

Of course, in another sense, you could say the shadow of photography is all over these paintings.

Featured Comment by Dwain Barefield: "This is what Joni Mitchell had to say about Dylan in a 2010 interview: 'Bob is not authentic at all: He’s a plagiarist, and his name and voice are fake. Everything about Bob is a deception.'"

Featured [partial] Comment by MHV: ""Guess who wrote the catalogue for this exhibit of highly original pictures? Richard Prince. Remember the Marlboro man? I think we're about to hit a postmodern Singularity of appropriation...."

Featured Comment by Phil Service: "I won't address the issue of the paintings/photographs, and Joni Mitchell is entitled to her opinion. However, I don't think Dylan was trying to fool anyone with 'Modern Times.' The first few lines of 'Spirit on the Water' are straight from Genesis. That's hardly trying to sneak under the radar.  'Rollin' and Tumblin',' or something very similar, has been recorded by many people in many different versions. Sometimes McKinley Morganfield (a.k.a. Muddy Waters) is credited as the composer, but often it seems to be considered 'traditional' or public domain. (I'm guessing the song was not original with Muddy Waters, either.) Dylan has always been a sponge, who has absorbed folk, blues, country, rock, pop and just about everything else. I would argue that it is one aspect of his genius. He has certainly re-used (traditional) melodies. Woody Guthrie did that all the time. Are we also going to accuse Guthrie of plagiarism, or of being unorginal? For that matter, many artists have re-envisioned earlier works by other artists. Case in point: Manet's 'Le dejeuner sur l'herbe' clearly is inspired by several paintings and engravings by other artists. (You can check the Wikipedia page if you like.)

"At least as far as his music is concerned, I don't think Dylan is trying to fool anyone. Good grief, it was never any secret that he admired Woody Guthrie, and imitated Guthrie's songwriting and musical style, as long as it suited him, or until he had exhausted the artistic possibilities that he could find in Guthrie's style. But Dylan, as all great artists, also moved on to other other forms. He's always been what he wanted to be, not what we wanted him to be. Is that what Joni Mitchell is complaining about? Part of the enjoyment of Dylan's music is discovering his sources and seeing how he modifies, re-works and re-imagines them."

Featured Comment by Nick: "There are many things that puzzle me about this: Does Bob Dylan really need more money at this point? Why did he copy them so exactly when it wouldn't be that much more work to add, subtract, or rearrange elements and make them into clearly derivative works? If people are just paying for the name, why would they need to make up this whole cock-and-bull story about how he was inspired by visiting Asia? And who are the people buying these ugly, ugly paintings, anyway?"

'I Simply Don't Want to Photograph Ugly People'

And now for something completely different.

A photographer takes a stand against ugliness. She's gonna give us all a good name. Go, Jennifer McKendrick.

Mike
(Thanks to Catherine Barber)

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Featured Comment by Lynn: "I admire her ethics. Having a daughter recently targeted by Facebook bullying I can personally attest how devastating it can be for the victim. Denying the perpetrators of these nasty attacks an airbrushed public image for their senior portraits is a commendable step.

"It is a pity that Diane Arbus is not still with us. She would have been the logical choice to hold a mirror up to these bullies. Perhaps then they might reconsider their behaviour."

Featured Comment by Stan B.: "While I 'applaud' this particular action, where does it end and how will it be applied in an equal and nondiscriminatory manner—if it isn't, she sets herself up as a bully. What crimes and misdemeanors will she deem worthy to ignore, and which will she ordain suitable for punishment?

"If a student submits a plagiarized paper or cheats on an exam and thus beats out another honest, more deserving student for a top college or scholarship—shouldn't they be denied as well? I bet there were one or two of them. Is she not going to photograph adults who cheated on their spouses? What of all the 'upright' citizens of note and stature common to any town, anywhere who invest in and entertain questionable dealings with other seemingly 'upright' associates? She's walking a thin line if she's gonna play the photo chief of morals and integrity—who'll be left to photograph? I think I prefer the Newman/Krupp solution." [Link added by me —Ed.]

Monkey Business Monkeywrench

This is almost bizarre. First we were discussing copyright again, on this site, in the Baio vs. Maisel case. Then I linked what looked to be one of those friendly little internet memes, the black macacque taking pictures of himself with David Slater's camera.

So now the two have been dumped into the same blender and swirled together. They're actually arguing over the copyright of the monkey pictures. When I say "they," I mean Techdirt and Caters News Agency, which represents Slater.

It's a fair question, at least. The copyright law, if I remember, has a line forbidding the copyrighting of pictures taken automatically. What exactly that means when it comes to wildlife photography isn't exactly clear. At least not to me. What about a picture like the infamous jumping wolf photo, where the photographer set the camera up in a blind and it was triggered remotely by a sensor set off by the animal itself? Who "took" that picture? There must be case law covering this.

I seem to recall an old story of some tourists (was it a commenter here?) who happened to ask a passing stranger to take a picture of them with their camera in front of some landmark. The stranger happened to be Richard Avedon. Technically, I suppose, he owned the copyright to that shot, although I don't believe he informed them that he normally charged a King's ransom to do for anyone else what he did for them for free.

In this case, though, the issue is clear. The agency in question doesn't know what it's doing. Techdirt's use of the monkey pictures was clearly and unambiguously Fair Use.

Mike
(Thanks to Dave Sailer)

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