Legal Aspects of Photography

Copyright Infringement, or Fair Use?

Sometimes the line between the direct copying a work of art (copyright infringement) and creating an entirely new work of art (fair use) can be very thin. There is a murky gray zone where the two sometimes meet.

For example, take (or leave) the photographer-artist Richard Prince. In one of his most famous images, he simply re-photographed a Marlboro ad, cutting out the text and leaving just the cowboy on the galloping horse. It sold for over a million dollars. Then another copy sold for over three million dollars.

He was sued of course but, after an initial court defeat, he eventually won. The US Court of Appeals, Second Circuit (Cariou v. Prince, 2013) said the photographs (well, 25 of the 30 works in question) were “transformative” so, therefore, “fair use”. 

Since Prince has made it his business to copy others I’m sure he wouldn’t mind me posting a photo of the image in question, “Untitled (Cowboy)”. Here it is, original ad on the left and Prince’s “re-appropriated” photograph on the right:

I’ll follow that up with an interesting three-minute video in which Sam Abell, the original Marlboro Man photographer, discusses what Prince has done:


Finally, how about my personal example of a “re-appropriated” work? Does it have a completely new meaning and value as a work of art? Is it transformative? Does it present a “new aesthetic”? Ultimately, then, is it copyright infringement or fair use?

Perhaps you could interpret it as a direct commentary on what Richard Prince has done to Sam Abell, eh?

Assassination of a Photographer. Denver, Colorado, 2016
Assassination of a Photographer. Denver, Colorado, 2016


Explanation: The above is a layered composition I derived from the following works, which you can see at the Denver Art Museum:

Roger Brown’s Surveying the Siberian Explosion (1985, oil on canvas) – all the exploded trees and the surveyor–who initially looked like a photographer to me

Carroll Dunham’s Shootist (2000, mixed media on linen) – man with pistol and balls on his nose–a powerful sexual violence commentary

Julian Opie’s Imagine You are Driving 3 (1997, vinyl stretched over an aluminum frame) – the disorienting highway scene

Worried about online theft of your images?

Well, Why Not. Boulder, Colorado, 2014
Well, Why Not. Boulder, Colorado, 2014

Many photographers do indeed sprout gray follicles about this. So, they…

…watermark their images (but, watermarks can be cropped or cloned out in many cases–and they distract from the image)

…copyright their images (but, the simple act of creation creates the copyright–however, it does make a lawsuit much easier)

…load up very low resolution files to the web (but, they look like crap and people steal them anyway for web use)

…don’t show their work on the web at all (but, think of the exposure that is lost when you don’t)

So what’s a pensive person to do to have peace of mind out there on the wily Wild West of the web?

Well, one good option, in my mind anyway, is to adopt Trey Ratcliff’s philosophy: just don’t worry about it! Trey has a very popular website, Stuck in Customs, and his article, Why I Don’t Use Watermarks, lists eight major points about why he doesn’t worry his fool head off about the whole mess.

Here are two of his key points (my translation):

–If you worry about “bottom feeders” stealing your work, then you get stuck in the awful cycle of suspicion-fear-anger-hate-suffering, and that is no way to live your online life (or your real world life, for that matter!).

–A bit of stealing here and there is the cost of doing business (like Tic-Tac thefts at the 7-11 Mart, he says). In other words, it is the cost of building good karma–and a good following–on the internet.

You can read the entire article HERE–and I’d certainly recommend his website for your “Favorites” tab.

By the way, if you are curious to see if any of your images have actually been stolen and reused on the web, you can try this:

1) Go to Google Search by Image.

2) Click on the little camera icon.

3) Click on “Upload an image”.

4) Click on “Browse”.

5) Locate your image and click on it.

Google will then find where that image is displayed on the web and display those links. Don’t think this is a perfect image locator, though. I’m sure the search engine, as sophisticated as it is, will still miss some remote and dusty corners of the internet. But, it is a good start.

A random search with a few of my better images showed exactly zero thefts. (Alas, I’m not popular enough for people to steal from me–yet!) Maybe the case is different with you, though, so go give it a try!

Me? I’ll not worry too much about it. I think I’ll follow the path through the calm sea of karmic tranquility instead.

Mural Photography Etiquette

A High Voltage Mural. Longmont, Colorado, 2013
A High Voltage Mural. Longmont, Colorado, 2013

Murals can be works of art just as much as sculptures, paintings and photographs. An artist created the mural and deserves credit for his or her creation. When photographing murals, remember this and understand that you are free to photograph these murals (including those wonderful banks of graffiti) when you find them in public spaces, but your photograph of them may not be used for commercial purposes (to advertise your website, to sell products, etc.) until you have the permission of the original artist.

Now, if your photographic work adds significantly to the appearance of the original mural, or the mural is only in your image by happenstance, or your work simply uses a part of the mural to create another, more complex, and different, work of art, then you might be OK. Yours could be called an original creation and not simply a photographic copy of another’s work. Best to find legal advice to be sure, though, if you are pursuing a commercial objective.

For most of us, this kind of photography is not a problem as we are not trying to make money off of the efforts of the original creator, and so it is with this image. This mural was on several sides of one of those big, green, square, power boxes you might see along the alleyway behind a strip mall or near a corner in your neighborhood. I tried to isolate what I thought was the most interesting portion of the painting. (I did not see a signature on this particular mural or I would have included it here to give the muralist due credit.)

Obviously the author had a sense of humor.

Postscript: I found an online article in the Longmont Times-Call entitled ‘Shock’-ing art appears on Longmont utility boxes (8/14/2011). Five artists are listed, so it is possible that the above example is by one of them. The location of this bright orange “bird-on-a-wire” image didn’t correspond to any of the locations listed in the article, though, so I still can’t be sure who painted it.

Murals, graffiti, and public art

Large town mural. Leadville, Colorado, 2013
Large town mural. Leadville, Colorado, 2013

Is it legal to make direct photographs of public art (as in the above image)? Of course it is! Snap away…post on Facebook…show your friends…post on your blog…make prints for artistic purposes…even make a coffee table book of the graffiti styles of Moscow, Idaho if you like…BUT, if you intend to use those images for commercial purposes–say, to advertise your business, or to sell greeting cards and make money–and the images are simply straight pictures of the original art–then you are most likely violating the copyright of the original artist. This includes all kinds of public art: sculpture, paintings, murals, graffiti, mosaics, and so on.

And this also includes the obnoxious (to you, maybe) but colorful graffiti spraypainted on the sides of railroad freight cars, even if there is no obvious (to you) signature or date.

Now this can get a bit less clear if you use the public art as only one element of your photographic composition–that is, if there is more going on in your image than a simple photographic reproduction of the original artwork (not the case in the example image I have posted above, by the way).

If your work goes beyond simple copying and creates something new you are probably OK. (For a really interesting example of this, check out Marcel Duchamp’s Mona Lisa with a mustache called “L.H.O.O.Q.” at THIS LINK.)

Your best bet if in doubt: consult a lawyer who specializes in copyright law.

The Ethics of Street Photography

The Lip Ring Girl. Barcelona, 2010
The Lip Ring Girl. Barcelona, 2010

I do occasionally enjoy trying my hand at street photography. It is quite a challenge. I always have in the back of mind the idea of catching some unusual juxtaposition, portrait, or interaction that could make a unique image and I keep trying. Ah, the ghosts of Henri Cartier-Bresson!

For some reason, I seem to be much more relaxed about doing this kind of photography when I am in Barcelona (as in the image to the left)–surely something to do with the more relaxed and less paranoid European attitudes. Anyway, I have already written several blogs about street photography, but I thought I’d expand on it a bit as well as give you a link to one of the best articles on the legal and ethical aspects that I have yet read.

First, perhaps the main worry most folks have is the issue of what is legal and what is not. Generally, if you are in a public space, there is no “expectation of privacy” for individuals there and you can make photographs. You can even make photographs or videos of police activity as long as it is happening in public and you are not interfering with what is going on (careful, though, it’s the cops who often decide what “interfering” might mean!). However, on private property (including shopping malls, stores, coffee shops, etc.), the owners make the rules and photography may or may not be allowed. If a person has an “expectation of privacy”, i.e., they are in their home, their backyard, or on their private beach, then photography is not generally legal. The recent controversy over Kate Middleton’s topless photos is a good example–she was apparently on a private balcony and the photographer was almost certainly invading her expectation of privacy by aiming his big telephoto lens that direction.

Now, beyond what might be legal and what is not, there is the question of what might be ethical in street photography. You could certainly photograph random people on the sidewalk with a bright flash from two feet away and, although legal, would that be ethical? Legally speaking, you could also stand next to a children’s playground with your monster telephoto and take pictures of children playing, but would that be ethical given the current climate in this country?

I happened across a great article by Kirk Tuck concerning these very questions. This excellent blog post discusses what is legal, what is not and, even more importantly, what might be a more ethical and sensitive way of doing street photography to get good results. You can find Kirk’s superb article here.

I happen to agree 100% with his point-of-view and plan to put his techniques into more vigorous practice the next time I’m out on La Rambla in Barcelona–and, yes, I may even give it a go on the Pearl Street Mall in Boulder!

Street Photography: Is it for you? (Part 2)

Fishnets and Sneakers. Barcelona, 2010
Fishnets and Sneakers. Barcelona, 2010

Today, in Part 2, I’ll go into some specific street photography techniques plus some dos and don’ts, but first a quick couple of comments on another of my attempts (left). It is in color, not monochrome, so that may offend some street purists…but, does it imply a story? Does it arouse your curiosity? How would you critique this image? What do you like? Not like? Would you have cropped it differently? The next time you are out and about in an urban space, see if you can capture an image that tells a story as I was trying to do with these three individuals.

OK, now here are ten specific street photography points, ideas and techniques for you, and they should apply whether you are in New York or Small Town, USA… Keep reading, there’s more!