Bandopadhyay argues that “while originality is widely accepted as one of the fundamental ingredients of a copyrightable work, the determination of originality with respect to photography is even more tenuous than with other copyrightable works, in ways that judicial decisions ignore and legal scholarship has left unexplored.” Photographs are protected under the Protection of Original Design in the , codified in the US under Title 17, Chapter 13. Canada extends protection to photographs as “artistic works” under the section 2 of the .

Connecting the Dots

The connection Bandopadhyay draws between intellectual property and disaster begins with his interest in how law produces meaning in society. He believes that law produces meaning by controlling the means of knowledge production, and therefore, the production of photographic documentation of disasters and catastrophes. He begins by recalling his work on a disaster management project for the past five years that exposed him to how states created and maintained power by using information-management strategies. Dating back to the mid-late 18th centuries, modern states emerged by devising rules, regulations, conditions and institutions that allowed for something called a “disaster” to occur. From this, these states could offer some explanation or interpretation over the disaster, creating the narrative behind each catastrophe. Through this act of control, Bandopadhyay believes, modern states could maintain power even when the state was unable to have actual control over that disaster. This study produced two findings; first, that disaster exists as a real “thing” and second, that disaster exists as an interpretive context over which various groups battle for power. For the purposes of his current project and to further his argument, he focuses on the second finding, supporting a more subjective and contextualized consideration of disaster photography.

It seems that the connection between visualization and disaster then comes down to the human factor of interpretation. Bandopadhyay highlights that if disasters are interpretive creatures, then visualization is very important because, for most of the world, visualization is how we relate to the world. We understand the environment, each other and therefore, ourselves, ultimately shaping what we see and whether we believe what we see. Intellectual property, or copyright specifically, is, therefore, the legal regime that controls the means of which visualization is produced, who gets to own, transfer, manage and monitor the property, and determine who can assign meaning to intellectual property. Bandopadhyay studies disaster photography in terms of copyright law because it helps us understand how a legal regime typically disassociated with catastrophic events can nevertheless have a role in how we perceive ourselves in relation to those catastrophic events.

Familiarly Unfamiliar

As everyday consumers, we deal with disaster photography more than we think. Bandopadhyay goes on to explain a more meaningful way that we associate disaster with imagery in what I would simply describe as a compare/contrast system with multiple photographs. For example, the Hurricane Katrina Memory Bank is a digital storage space, a concept of contrasting the past with the present using photograph that started to become more prevalent after September 11th. This storage space asks people from all over the world to submit photos of disasters that are first archived and then geographically pinpointed using Google Maps. The meaning in this process comes from the contextualization of the disaster photograph, allowing the user to tell and share their stories. This way, disasters become less anonymous and irrelevant, evolving into more of a personal connection between the online world and those originally affected by the disaster.

Originality Underexposed

Bandopadhyay believes that at the heart of all disaster photography is originality. The legal restrictions on using disaster photography begin to tighten because there is a risk of the after-disaster photograph being an original, copyrighted work. In the US, to be copyrightable, the work must pass what Bandopadhyay calls a “mythical bar” of originality that comprises of two components. First, the work must be an independent creation, and second, that the work requires “something more.” For such an important cornerstone of intellectual property protection, one would think the courts would have adopted a more defined understanding of what original means. Nonetheless, originality is a value for which we determine whether something is worthy of being copyrightable, therefore making originality one of the most important values to consider in photography.

Part of is his critique is that there is no consideration of a narrative when formulating that value. In comparison with the copyright laws of the most developed countries, most agree on the determinative factor of originality for copyright protection. In the US, the standard for writing, for example, is very low as any expression of creativity passes this bar. Bandopadhyay’s problem with this is that while there is agreement that originality is in the value of work, there is no direction as to how we determine originality, and for what reasons. In turn, this creates a need for comprehensive criteria to guide our determination of originality in photography.

The answer to his call may exist in some form within criteria first developed in the UK, adopted by the European Court of Justice, and then by Canadian courts. Although the US has not explicitly adopted this set of criteria, US courts use a very similar consideration set comprising of the (i) subject matter of the creation, (ii) originality and rendition, and (iii) originality and timing.

Subject Matter of the Creation

To help explain what “subject matter” means to US courts, Bandopadhyay points to case law, specifically to ., one of the most famous decisions that dealt with copyright and photography. In this 1884 case, Napoleon Sarony visited New 91��ɫ and took a series of photographs, one of which Burrow-Giles printed and sold 85,000 contrasted. Burrow-Giles Lithographic argued that although the Copyright Act extended to authors and writers, the provisions did not extend to protecting photographs. In this time, photographs were generally not regarded as artistic work, but instead, simple mechanical representations of reality. However, the Supreme Court disagreed with Burrow-Giles’ assessment of photography as non-art, for two reasons. First, the Court said the photographs are original works of art by drawing analogies, not to writing but to paintings. Second, the Court said the photographs represented an original scene because it did not exist before Sarony created the scene and it would not exist but-for Sarony’s creative input. For these reasons, Sarony was found to own the subject matter of the photograph, and found Burrow-Giles’ reproductions to be in violation of Sarony’s copyright.

Notwithstanding this decision, Bandopadhyay notes the problems associated with analogizing photographs to paintings. First, photography is not an art of arrangement in the same way painting is because, in a painting, the forms only need to relate to each other. Bandopadhyay claims that if he knew nothing of the world, he could see a painting and it could still exist and therefore function as a painting. He says he could then close his eyes, draw lines on paper and his creation could still count as a painting. On the other hand, in a photograph, not only do the forms of arrangement relate to each other, but they also relate to things outside of the photograph, in the real world. Bandopadhyay further claims that if he did not know what a tree looked like, then he saw a picture of a tree, the subject matter would not make sense to him. This is because of the reference to forms, in this example, a tree, are out in the real world, therefore creating a need for a precluding reference before the subject matter can be interpreted.

Photographs also possess a transparent element; we look at a photograph and tend to believe what we see. We also interpret photographs in different ways, admitting the image to mean different things to different people. This is where Bandopadhyay believes disaster photography “as a lens” is useful because this type of photography amplifies the typical reaction to the information and emotion we expect to take from a traditional photograph, making disaster photography automatically newsworthy. When we look at disaster photography, we believe the subject matter as truth. Disaster photography is then relied upon to serve as memories to those affected, and as a medium to invoke emotion from those who are not.

Contribution

To help explain contributory originality, Bandopadhyay gives the example of American photographer, , and her famed photograph. At the time, Lange was touring the United States in the mid-late 1930s, taking photographs of unemployed and poverty-stricken families to send to Congress, pressuring the government to send assistance to the displaced and migrant workers of America. She found this family in a small town and without much conversation or any questions, she took five exposures of the mother and her two children. The original photograph was taken at a very close range yet the woman was looking away with her children hovering towards her, as if the mother knew what the photograph was for. The purpose of the photograph was never verbally communicated by either Lange or the mother, but Lange claims the woman was an actual collaborator in the production of the photograph. In later years, the daughter of the mother agreed. Although the mother was not told how to pose, she knew what the photograph was for and knew how she was to look if the photograph was going to send the help she desperately needed. In this collaborative understanding, Bandopadhyay believes the benefits of viewing photography as a web of relationships, instead of a hierarchical structure, has shown to have great benefits for photography.

Originality as Rendition

’s famed explains how originality can be found in rendition. Bandopadhyay establishes that the mountain in the image is not real nature but instead, how Ansel wanted the world to perceive nature. Adam’s pre-visualized idea of a hyper-real nature was executed by his own form of editing, or pre-visualizing images, to see in his mind what he wanted to exist in the real world, then taking steps to make that a reality in his photographs. This photograph became synonymous with the natural wilderness and was a main symbol of the 1970s environmental movement. Bandopadhyay argues that the photograph became so well known because it established a reality that people were convinced by. People felt this was pure nature, contrasted by the grime and grain of the industrialization that was taking place in the United States at the time. Ansel spent months revisiting the same location, studying topography, weather patterns, and even exposure levels. Simply, the photograph was completely manufactured before capturing the image. This way, Bandopadhyay thinks, to say this is a rendition, and therefore something that is not a powerful creation of reality, any different than the creation of subject matter, is absurd because Adams convinced hundreds of thousands of people to put their lives on the line protesting; a reality indeed created by rendition.

Originality and Timing

Of the three factors, Bandopadhyay believes timing is the least strong claim to prove a photograph is original. The US Court explains this factor with a rather barebones justification using ’s  to show that originality in timing creates no rights over the subject matter. The Court held that Mengelsen did not make the bear eat the fish, for if he stood there long enough and took enough photographs, he would have captured that same image. However, this is only one, a rather narrow, understanding of how timing can be determined to be original. Bandopadhyay gives four examples of alternative understandings of original timing. First, , the father of real-time photography, would wait until the moment of life would happen, or the “moment of equilibrium”, when everything would “click”, and then he would take the photo. Second, Cartier-Bresson, also waited for a moment, but more specifically, “a decisive moment when, if memory serves, the organization of forms and significance of events, coincides in the mind of the photographer.” Until these factors all came together, Cartier-Bresson would not take the photograph. Third, critic ’s perspective emphasizes a temporal element, “the choice is not between photography X and Y, but the photograph at X moment and Y moment,” incorporating context and environmental change into his consideration. In a more personalized perspective, explains “through an event has come to mean…something worth photographing, it is still the ideology, that determines what constitutes an event,” or in other words, photographers take on a gate-keeping role in determining what and why something is worthy of being photographed.

These alternate understandings allow for other factors such as culture to determine timing. Based on who you are, where you grew up, and what you think is important, non-numerical timing will shape if and when you decide to take a picture, making culture and personalized factors critical when discussing the concept of originality in timing. Bandopadhyay claims that entire disasters can pass without notice if people are not prompted to photograph it. He believes that although there are other ways to offer narratives on how originality can occur, when we try to find originality purely by looking at the subject matter itself, these important narratives fail to be considered when determining holistic originality. Excluding photography skills, social justice, personal and societal ideology, culture and other normative factors that might lead to a coherent narrative and justification for why something was photographed eventually become lost and irrelevant in US courts. Thus, Bandopadhyay rejects the notion that originality in timing, unless defined as Megelsen’s Catch of the Day, click-it-or-you-miss-it photography, is incapable of meaningfully contributing to originality.

Once we broaden our understanding of timing, it then becomes one of the most important features of a photograph’s originality. Bandopadhyay says that timing is capable of affecting us by evoking absence and a state of change. If we look at a photograph of disaster debris, it has little effect. But when we compare it with a contrasting photograph in a before-after comparison, we can then see the state of change, and both individual photos are given unique feeling and effect.

Bandopadhyay reiterates that timing makes contributions to the photograph and the only way to see that is when you allow originality to have a narrative. We have to understand that someone has put something in the photograph for a reason and we need to study why it was put there, otherwise, we risk fetishizing the photograph and the photographer.

Same Picture, Different Frame

In all, Bandopadhyay reiterates that post-damage disaster photographs do not have narrative when they stand alone. Otherwise, they are simply surveillance photographs with little purpose. We can rescue the unpurposive photographs by adding a narrative of some sort with a comparison that shows a state of change. The issue highlighted here is that many of the post-damage photographs are copyrighted, in effect, legally sheltering these images from adopting a fuller meaning and purpose.  Bandopadhyay is . Ultimately, Bandopadhyay’s findings suggest the US Courts are missing the point of originality when labor, skill, judgment, attention and detail are left out of the conversation when making a determination of originality.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Bigger Picture, Bigger Frame? Dr. Saptarishi Bandopadhyay's Recast of Narrative in Copyright and Disaster Photography appeared first on IPOsgoode.

Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the  has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law, considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a copyright infringement ruling against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.  Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist Richard Prince copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s identical reproductions of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,  saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist  were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is ’s appropriation of ’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of . She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of  from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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