PRINT Summer 2014


networked photography and copyright

Doug Rickard, #40.805716, Bronx, NY (2009), 2011, ink-jet print. From the series “A New American Picture,” 2008–11.

VISITING CHICAGO? Then surely one of your stops should be Millennium Park, to record your presence in the reflective surface of Anish Kapoor’s Cloud Gate. Officially unveiled in 2006, the polished-steel sculpture quickly acquired the affectionate nickname “the Bean.” And just as quickly, its allure became a source of controversy, as security guards attempted to enforce city policy requiring paid permits for professional photographers (identifiable, apparently, by their tripods).

The injunction was purportedly intended to protect Kapoor’s copyright, though it soon became clear that the city had secured license to those rights for itself and was therefore guarding its own merchandising interests. Reactions were fast and furious. Immediate evidence of the futility of policing photographers’ access came in the form of a Flickr compendium tagged “cloudgate,” which now includes more than thirty-six thousand images. But even the relatively frictionless process of a Flickr upload pales in comparison to the unrestrained ease of Instagram. #BeanPics, a Tumblr that captures geotagged Instagram photos taken or uploaded in the work’s vicinity, logs dozens or even hundreds of new images each day (including five in the time it took to write this sentence).

Of course, everyone is a photographer now. But implicit in the phrase taking pictures is the double possibility of image capture and subsequent appropriation. Tumblr, Pinterest, Facebook, and Twitter all have business models based on ceaseless recirculation of user-generated or appropriated content, in the context of services that are ostensibly free but intent on monetizing information gleaned from users. De-skilling with respect to the actual taking of photographs (composition, lighting, etc.) is balanced by increased engagement with assembling, organizing, and circulating images and data. One of the interesting, even ironic, aspects of these developments is that many of the tactics of image production and compilation that are now integral to Internet life, as well as to the Internet economy, reflect the protocols of conceptualism and Pictures-generation appropriation—both of which were understood, at least in their initial phases, as mounting critiques of commodification and representation. At the same time, popular practices of curating and sharing images have increasingly come to inflect contemporary art, which is itself more and more enmeshed in the mechanisms of Internet transmission (as has been discussed in these pages by various authors). In both artistic and popular practices, overlays of image production and reuse (along with related forms of engagement with music and video) have expanded at an astonishing rate, opening up new aesthetic and economic territory while also running up against legal constraints on intellectual property. Yet recent developments (including the rise of so-called post-Internet art) need to be understood in relation to the longer history behind strategies of appropriation, co-optation, branding, and mass dissemination, as well as the central place of photography in this discourse.

WHAT IS a professional photographer, in any case? One answer might be “an endangered species,” particularly where photojournalists are concerned. In an age of newspaper downsizing, photography staffs have shrunk dramatically—to zero in the case of the Chicago Sun-Times, which eliminated its entire photography department in May 2013. Word quickly spread that Sun-Times reporters were getting a crash course in how to use their iPhones to record images as part of their coverage. Everyone’s worst fears were confirmed by the now-infamous June 26, 2013 cover where the headline celebrating the Blackhawks’ Stanley Cup victory completely dwarfed a grainy, diminutive snapshot of the hockey trophy being rather unceremoniously lugged about. But the Sun-Times is hardly alone, since the journalistic habit of acquiring photos or video from whoever happens to be on the scene has become an important part of news reporting across the board. No tripods needed.

If cell-phone cameras have contributed to the displacement of photographic skill by volume, there is an equally insatiable appetite for image reuse. The recent decision by Getty Images to do away with the watermark that they had used to protect most of their archive is one indication of the impossibility of corralling digital images. The company’s new paradigm allows its photos to be shared on websites, blogs, and social-media platforms as long as they are embedded. Each embedded image comes with a credit line, but, perhaps even more important, each is directly linked to the Getty Images website—in a manner analogous to procedures used for tweets, YouTube videos, and music circulated via SoundCloud. The protocol will allow the company to append advertisements to embedded content should it choose to do so in the future (YouTube already does this quite widely)—and to rescind the content at any point. Getty’s latest moves therefore drive home a paradox of the Internet: The more freely images and other media circulate, the more they are met with sophisticated mechanisms to search out and control them.

The current strength of Getty Images is intimately connected to the demise of staff photographers, with efficient search tools and instant delivery facilitating the increasing use of stock images in place of photojournalism. Nor will the shift necessarily benefit professionals in the stock-photo arena. A 2008 agreement between Flickr (owned by Yahoo) and Getty Images gave Flickr users the option of making images on their feeds available through Getty licensing. The Daily Mirror provided a striking demonstration of this convergence with an April 2014 cover story on UK hunger, dominated by a crying child who turned out to be neither British nor undernourished: the 2009 photo of an American girl upset over the loss of an earthworm that slithered away during a day in the park had been posted by her mother to Flickr and licensed for use via Getty Images. Even The Guardian, whose commentators described the photo as “a lie,” acknowledged that its function was more illustrative than documentary. Like “sponsored content” and “advertorials,” such use of stock images will likely become only more prevalent. The recent expiration of the Getty-Flickr agreement therefore probably had more to do with Flickr’s shrinking profile than with any change of heart vis-à-vis amateur and semiamateur content on Getty’s part.

The intersection in popular practices between taking the same pictures as everyone else (à la the Bean) and simply taking someone else’s photo could be read as a large-scale realization of the critique of originality mounted by the Pictures generation (suggested, for example, by the overlapping visual rhetoric in Cindy Sherman’s set-up “Untitled Film Stills” series, 1977–80, and Richard Prince’s Untitled [Four women looking in the same direction], 1977, created by rephotographing advertisements). Yet vast networks of exchange based on “liking” or other modes of affirmative sharing tend to drown out the critical dimensions attributed to earlier forms of artistic appropriation—and this is hardly accidental, given that much of this dialogue is taking place in the context of sites governed by terms of use that have been carefully calibrated to support underlying corporate interests.

DESCRIBING his early book projects in a 1965 interview in Artforum, Ed Ruscha claimed that it was “not important who took the photos,” and recounted how, after an unsuccessful search at a stock agency, he decided to shoot the photos for his Various Small Fires (1964) himself. Ruscha also characterized the photographs he was after as “simply a collection of ‘facts,’” the opposite of fine-art photography in their resemblance to technical data or snapshots. But when does an assembly of facts become an authored work? Not only Ruscha’s books but also many of the individual photographs that they comprise have been presented as such, despite his early statement.

The distinction between fact and expression is crucial to US copyright legislation, with facts not eligible for copyright protection but expression very much so. Hence the old trick by map publishers of sprinkling in the occasional fake place. Maps are eligible for copyright as long as they are clearly an original expression of the information in question—but it is much easier to prove that someone copied your expression, rather than relied on the same underlying data, if the derivative work accidentally includes something that is not a fact. What will happen, though, as we move ever closer to Jorge Luis Borges’s vision of a record so detailed that the map of the empire is the size of the empire? Google Maps, and especially Street View, present an ever-expanding record of the physical environment that not only encourages multiple forms of virtual travel, but also provokes the enduring urge to document the sights encountered along the way. Ruscha was prescient here as well, with the process he employed for his famous 1966 book Every Building on the Sunset Strip. Mounting a motorized camera on a tripod in the bed of his pickup and then splicing the images together into an accordion-style book almost twenty-five feet long, he captured a time-lapse panorama of both sides of the street. Foreshadowing of Street View is evident in both the recording device itself and certain similar effects, where moving cars are truncated between shots. In fact, Google hosts many armchair travelers intent on finding abrupt time-shifts and other strange visual hiccups (a number of which have been documented by artist Emilio Vavarella) in the recording process.

Although early arguments against photography’s status as an art form emphasized the mechanical nature of the recording apparatus, recognition of the importance of image selection and composition quickly won out. With Street View, however, the images have generally not been seen by human eyes prior to uploading, since both the recording and data processing are highly automated. Artists who have responded to the dynamics of this constantly expanding record of the inhabited world are raising questions about the rights of individual users as they traverse this terrain, as well as about the evolving nature of photography itself.

Two examples from the wide range of responses suggest some of the issues at stake. Sophia Brueckner, one of a number of artists exploring locative media, worked in collaboration with the Institute for Infinitely Small Things to produce iSkyTV, 2013, a networked project that allows individual users to animate a Street View image of the sky above their position (in a conscious homage to Yoko Ono’s Sky TV, 1966, where a monitor inside the gallery presents a live feed from a nearby video camera pointed skyward). Given that Brueckner employed a live link to Street View, as opposed to using downloaded images, her project is consistent with Google’s terms of service, which, akin to those governing Getty’s embedded photos, articulate procedures to ensure that maps and Street View imagery remain under Google’s control and will be edited or deleted in coordination with alterations to the central data archive. But the same cannot be said of work produced by Doug Rickard, whose updated version of street photography in his series “A New American Picture,” 2008–11, relied on virtual travel via Street View to impoverished areas of the US. Responding to the Street View landscape in much the same way that photographers have long engaged with their physical surroundings, he has captured photographs of these places using a camera (mounted on a tripod) that he points toward his monitor screen.

So far, the question of whether Google can claim copyright to a mechanically produced visual record of much of the inhabited world is not one that the media behemoth has elected to pursue in response to the increasing number of artists who have extracted imagery from its interface. Given the privacy issues raised by Google’s operations—both the visual recording and the far more controversial practice (presumably ended) of capturing available wireless data—the company is perhaps wise not to provoke further scrutiny of its surveillance practices. It therefore remains to be seen whether artists will be able to assert a fair-use defense for practices that exceed Google’s explicit terms of service.

It is equally important to recognize that copyright legislation provides only limited guidance in relation to the ever-multiplying practices involving forms of appropriation, adaptation, recombination, and other responses to existing imagery. In the US context, the 2013 appeals court ruling in Cariou v. Prince was important for its affirmation of a transformative standard (as opposed to direct comment) as the basis for its finding of fair use in imagery that Richard Prince derived from Patrick Cariou’s photographs of Jamaican Rastafarians. Yet the determination by the appeals court that twenty-five of the thirty were definitely fair meant that five were still sent back to the district court for further review—an event that inspired a further round of amicus briefs laying out sharply divergent positions. A brief from the Warhol and Rauschenberg foundations posited an expansive understanding of fair use, one not only encompassing transformations in appearance, but also granting that “artists employing pre-existing imagery may be entitled to such protections even where the transformative meanings found in their ‘follow-on’ works arise less out of visible differences than on differences of context.” A second brief, filed on behalf of a cadre of professional photographers and licensing associations, argued against any adaptation without payment. But further clarity from the district court regarding these competing positions (or the transformative status of the last five works) was precluded by a 2014 settlement with undisclosed terms.

In fact, Prince’s image use was in many respects profoundly old-fashioned—relying on digital technology to have the source material scanned and enlarged, but backward-looking in his creation of unique physical objects that have their closest affinities with earlier collage and montage practices. Their relevance is therefore limited in relation to a Web culture based on a constant stream of images (and of video and sound) that is subject to endless manipulation and retransmission by users who move fluidly between strategies of appropriation and production. Content producers (many of whom are otherwise known as artists) do indeed have a vested interest in copyright protections that allow them to benefit from the popularity of their creations, including downstream uses. Yet artists are also more likely to push the envelope with respect to assertions of fair use that extend beyond prescribed terms of service, particularly when the goal is to bring a critical lens to phenomena whose legal boundaries are articulated by corporate interests. In Chicago, attempts to curtail photographs of Kapoor’s Cloud Gate prompted protests about the copyrighting of public space. It is therefore crucial to recognize the importance of being able to articulate a response to imagery or artistic expressions already in circulation. As digitized representations of the world become ever-more encompassing, and as social exchange is engineered by corporate interests in the context of branded media platforms, it is increasingly urgent that we assert our rights in the virtual commons.

Martha Buskirk is a professor of art history and criticism at Montserrat College of Art in Beverly, MA, and the author of Creative Enterprise: Contemporary Art Between Museum and Marketplace (Continuum, 2012).