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Tuesday, 19 October 2010

"A picture's worth a thousand words ..." Really?

The British Journal of Photography reports that Getty Images is pursuing a copyright claim against the campaigns of US Senate candidates Sharron Angle and David Vitter, alleging that they used one of its photographic images out of context and without a proper licence.  According to the report's author, Olivier Laurent, British photographer Chris Floyd shot a story for the British version of GQ magazine back in 2006 called "The Minutemen".  This story focused on a citizen group whose main concern was illegal immigration into the US. It appears that Floyd, accompanied by a journalist, visited the Mexican town of Altar, a place of transit for would-be illegal immigrants heading for the border. The image shown here was published in GQ before being made available through Getty Images for editorial (and presumably therefore non-political) purposes only.

Illegal? Immigrants? How can you tell
when all you can see is the photo?
It now transpires that the photo was used in the Republican senate campaigns of Sharron Angle (Nevada) and David Vitter (Louisiana). In Angle's case the subjects of the photograph are labelled ‘Illegal Aliens’, even though the Getty picture caption clearly states the portrait is of three Mexican citizens and that it is taken in Mexico. says Floyd. Alleging copyright infringement, Getty Images has filed a claim with video hosting services such as YouTube, which have now removed the offending videos of the ads. Floyd adds that his own credibility as a photojournalist has been compromised by the demonstrably false statement that the men portrayed in the commercials were illegal aliens.

The IPKat notes that, in the United Kingdom, the author of a work (in this case, the photographer) enjoys under the Copyright, Designs and Patents Act 1988, s.80, the right to object to derogatory treatment of his work. for the purposes of that section, s.80(2) defines treatment:
"(a)“treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than—
(i)a translation of a literary or dramatic work, or
(ii)an arrangement or transcription of a musical work involving no more than a change of key or register; and
(b)the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director".
The IPKat wonders whether the caption of a photograph, being a literary work, can in generaly be regarded as part of a photograph, which is an artistic work, for moral rights purposes. He also wonders whether, if no caption is given to the photograph by the photographer, the subsequent mis-captioning of a photograph to which no further change is made could qualify as a "treatment", however derogatory it may be. 

Merpel isn't as interested in the copyright aspect as much as in the value of an illustration which doesn't effectively illustrate.  The photograph above could equally well be captioned "Mexican lads in Altar", "Illegal Aliens", "Hispanic lads in San Diego" or "Alfonso, Pedro and Diego on holiday in Bournemouth" -- and no reader would be any the wiser.  So what does it illustrate?

3 comments:

Anonymous said...

Is "worth a thousand words" just a very reasonable estimate of what lawyers will charge for to sue for infringing the copyright in a picture?

Anonymous said...

While I have never been a professional photographer, my understanding from photographic journals and text books is that the photographer should have got his subjects to sign a "model release form" in order to be able to freely use the photos commercially. An internet search for "model release form" will produce numerous examples of template forms. It is common for forms to include a condition that the photo may be used captioned with names other than the subject, or that the subject is not to be considered to be an actual person. This would provide legal justification for captioning the photo with anything the end user wanted. In the absence of such a waiver the subject would apper to have grounds for objecting to misleading use of photos in which they appear.

I recall that when London Transport first introduced their automatic ticket barriers, a photo of one of the more amply proportioned MP's [Cyril Smith?] was used in publicity which suggested that even big people could use the barriers easily. As the subject had found exactly the opposite to be the case, he was able to prevent further use of the photograph in this way, even though he himself was not the copyright owner, but I don't recall the exact legal basis.

Anonymous said...

I'm not a copyright expert, but it seems plain from the Act that adding a caption to a photograph is "treatment".

To get one possible misconception out of the way first, note that the section quoted has no mention that the treated work must be a "work" in own right, new or not.

So - "treatment" is defined as (missing out a few options) "any addition to ... the work" and adding a caption is clearly an addition to the photograph. And it clearly doesn't fall within any of the listed exceptions.

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