By James

There’s been a lot written about copyright, including a fair bit by me, so I’m not going to say too much right now about the main battleground of online enforcement; suffice to say it’s just one area where rights are pitted against each other: the right of a web user to access information on the open internet, versus the right of the rights holder not to have their product available for free from an overseas web server outside the control of any competent copyright enforcement authority.

But the internet has brought far more instances where rights collide into the mind of the plain ordinary online person.

The photographer has established copyright protection, and also certain moral rights in many jurisdictions. But the rights of subjects – models, if you like, at least in a professional setting – were rarely considered, or understood, by many outside the circle of professional photographers, publishers and product marketing specialists.

The rights of the subject essentially depend on how the photograph is to be used.  A few photographers still argue they don’t need an official “model release” contract for pure works of art.  I’m not a lawyer and I don’t want to get into the details, however the situation is clear if a photograph is to be used to promote a product or service – the model has rights over how their image is used, and it’s necessary to get the model to release these rights before a photo can be used.

Meanwhile on the internet, we stick a photo of our friends on our favourite social networking site. We don’t have their permission, but they don’t object. Now what happens when we enter the photo into a photo competition run by our favourite brand of soft drink – and the photo wins? As photographer we had assigned a right for the brand to use photos entered in the competition in order to promote their competition, which in turn promotes their brand.  

We may also have signed to say we had permission from all “models”. But did we? Did we have it in writing? Did our friends understand they might just be in with a chance of banking a few of their allocated 20 minutes?

The sheer quantity of images produced and multitude of opportunities to publish mean (a) keeping track of assigned rights and releases is impracticable; and, (b) the lines between commercial and non-commercial, and between product endorsement, are blurred beyond recognition; and, (c) the sheer number of photographers and publishers makes education and enforcement a challenge, to say the least.

At least the subjects have a claim against any commercial organisation attempting to misuse such pictures. The same is not true where privacy rights meet art in the world of candid or street photography.

“Data protection” is often misquoted as a reason images can’t be published or a “right” individuals have against publication.  Google blurred faces on Street View therefore I can’t snap in the street and put the resultant art works online without blurring the faces of the subjects, right?

Wrong – or at least under the terms of the Data Protection Act 1998.  The Act quite rightly makes exceptions for journalism – after all it would be impossible to film a report from the street or cover any public event, protest or demonstration without capturing the faces of at least some participants and passers-by.

But it’s not widely known (outside the world of art, law and digital policy, at least) that the Data Protection Act also makes the same exclusion for art and literary purposes as journalism.  In fact, every mention of journalism also includes literary works and art in the same exclusion.

So, going back to Google Street View, it’s neither art or journalism; hence the blurring.

It’s not a blanket exemption for art, there is a “public interest test”.  But, especially in the highly subjective world of art, how can this be objectively assessed?  What is art and what is an invasion of privacy? How good does the art have to be to warrant placing an unwilling subject at a sensitive location – entering a sex shop, for example?  What are my rights if I accidentally become the subject of a famous work of art?

The problem with such a balance is that it needs someone to pass judgement.  If we’re talking about famous works of art then sure, let a judge decide.  But again we have a problem of scale; the sheer quantity of photographers and publishers means there aren’t enough judges or courts in the world to arbitrate over every grievance.  One website alone – Flickr – claimed this summer to have over 6 billion published photos!

And there’s another conflict, between the moral rights of the artist and the public interest.  As an artist I have a legal and/or moral right to control how my work is presented and reproduced.  But let’s say I capture a newsworthy event – an event the scale of which can only truly be appreciated in picture or video.

Few and far between, granted; but in these rare occasions is it really reasonable for me to be able to name my price and grant exclusive deals to selected news organisations, when the public interest in such circumstances lies in universal publication across all media outlets?

Some would argue yes, it’s a financial incentive for photojournalists to place themselves amidst newsworthy and often dangerous events.  We’ve all gotta eat! But now, when the defining image of a worldwide event is as likely to come from a citizen journalist as a professional photojournalist, is the financial incentive even relevant?