Assignment 2 Essay
brief – submission – blog – feedback – essay
Ownership and Authorship
Part 2 →
Tutor feedback was received on 7th March, including,
Research
Asg.2 tutor feedback
You have carried out some individual research as well as the prescribed for this assignment. Continue to use focused research as a means of developing your creative thinking and engage with critical reading on photography and the topics that you are working on. The work undertaken for this assignment provided opportunities to investigate the use of the uniform as a symbol of power and identity. This raises the question of whether we are seeing the person in the portrait or simply the stereotype identifiers of profession. Likewise, the use of third-party images in your work would be a good area for further critical research.
I replied on 9th,
Hi Matthew
Thank you for the encouragingly positive feedback on Assignment 2.
I note your point that I should be making more scholarly references to accompany the work.
I will consider uniforms and ownership / authorship, pursue your suggested links and continue with Asg.3.
Cheers, Nick
Ownership and Authorship
[9Mar] These issues were first considered in C&N Assignment 3 with reference to self portraits in which the artist, as object, did not press the shutter. This was in the context of my homages to Laelia Goehr’s 1945 portrait of Bill Brandt (figs. A2a and A2b) and Lewis Morley’s 1963 portrait of Christine Keeler (figs. A3a and A3b). Bright and van Erp’s comments on Tracy Emin’s, Outside Myself (Monument Valley), 1994 (fig. A1) were central to that essay.
The issues raised now need to be applied to the wider context of using stills from a third party’s public online ‘broadcast’ and also the question of copyright as applied to various online platforms.
Regarding the Emin photograph (taken by her then boyfriend, Carl Freedman, while on a book tour of the U.S.) Bright and van Erp conclude that,
In many instances it does not matter who pressed the button, as it is the artist who has conceived the idea, and to whom credit must thus be given
Bright and van Erp, 2019, p.152
The basis of the C&N project was to pay homage to a selection of self portraits by recreating them with me as the object. In the cases of the Brandt and the Keeler, they were not the photographers, and so the question of authorship was considered.
The Brandt portrait was taken by Laelia Goehr in Brandt’s studio after she had asked him for tuition in photography. Although the event is not well documented (or so I thought at the time), I chose to conclude that, given the stage of their mutual creative relationship, Brandt could plausibly have played a sufficient role in the creation of the portrait to be credited with a degree of authorship. [1]
In the case of the Keeler image, any assignment of partial authorship to Keeler herself would be tenuous at best but the opportunity arose when the contact sheets from the portrait session were auctioned in 2020. Two newspaper articles available online (Sharples, 2020 and Dex, 2020) suggested that the film producers who arranged the portrait expected Keeler to pose naked, but that she refused and wore some clothing. Her influence on the conduct and outcome of the session might be considered a sufficient contribution for part-authorship.
There is some distance yet to travel from Keeler to my stills from other people’s videos of religious services.
No treatment of authorship, ownership, intellectual property and, at its boldest, plagiarism, can be complete without considering the work of Richard Prince. Prince’s Untitled (Cowboy), 1989 is probably his best known work and a clear example of direct appropriation, but Robert Shore in Beg, Steal and Borrow (2017) deals at greater length with the more nuanced, but hardy subtle, example of Canal Zone, 2008 in which Prince adapted, interfered with, reinterpreted — ‘fooling around’ is the phrase Shore attributes to Prince (p.56) — images from Patrick Cariou’s book picturing Rastafarian society, Yes Rasta, 2000, figs. B1a and B1b.
Cariou took Prince to court and Prince’s defence was ‘fair use’. Cariou won in the first hearing, Prince’s appeal achieved a partial reversal and Shore states that the ‘matter was finally resolved out of court’, though Walter Robinson (2014) takes the view that the outcome left ‘ its effect on copyright law uncertain’.
The UK equivalent of the US’s ‘fair use’ is ‘fair dealing’, defined in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988 (legislation.gov.uk, 2021). The gov.uk web site summarises the position as,
You are allowed to copy limited extracts of works when the use is non-commercial research or private study, but you must be genuinely studying (like you would if you were taking a college course). Such use is only permitted when it is ‘fair dealing’ and copying the whole work would not generally be considered fair dealing.
https://www.gov.uk/guidance/exceptions-to-copyright, 2021
The purpose of this exception is to allow students and researchers to make limited copies of all types of copyright works for non-commercial research or private study. In assessing whether your use of the work is permitted or not you must assess if there is any financial impact on the copyright owner because of your use. Where the impact is not significant, the use may be acceptable.
If your use is for non-commercial research you must ensure that the work you reproduce is supported by a sufficient acknowledgement.
There are also exemptions for legitimate ‘criticism, review and reporting current events’, ‘teaching’, ‘parody, caricature and pastiche’ and with ‘sufficient acknowledgement’ summarised on the same gov.uk page.
In addition to the legal provisions, there has developed recently an informal restriction based on the social convention of cultural appropriation. This was first discussed during C&N in the context of Nikki S. Lee’s work. It is a subjective, voluntary and arbitrary code enforced through social media. It is worth repeating the comments of Bernardine Evaristo, the first black female winner of the Booker prize, who stated ‘that whole idea of cultural appropriation is ridiculous’ (Sanderson, 2019).
In my submission text for the assignment, I cited Robert Heinecken’s 1984 project CBS Docu-drama: A Case Study in Finding an Appropriate TV Newswoman (Hoy, 1987, p.128-9), fig. B2. Artforum describes Heinecken’s intention as ‘marketing science … parodied and fixed categories of gender and race … pointedly undermined’ through imagery and ‘an absurdist text to present the images as part of a scientific visual analysis’ (Biro, 2011). He has taken images from mainstream TV, some of which he has manipulated, and added text designed to expose the practices of TV newsrooms. None of the reports found on Heinecken’s work suggest that he was taken to court for his appropriations.
That brings us to consideration of my images for I&P Assignment 2 and, to quote my tutor, ‘the use of third-party images in your work’. There is a broader question too because I make extensive use of other photographers’ work on this web site in support of exercises, assignments, course notes and general blogs.
The online platforms used for church services include Zoom, YouTube and Facebook. There is no shortage of advice on copyright for online religious services, published by the churches (example from URC, Jackson, 2020) and other interested parties, but this tends to concentrate on the churches themselves using copyrighted material in their broadcasts.
The platforms themselves include relevant clauses in their usage contracts:
Zoom, ‘You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights.’ (Zoom, 2020).
YouTube concentrates more on stopping their ‘broadcasters’ infringing copyright in their uploads, although it does have a section on ‘fair use’, ‘In the UK, uses for purposes such as criticism, review, quotation, parody, caricature and pastiche might be considered fair dealing, but it can depend on the situation.’ (YouTube, n.d.).
Although not directly relevant here, The BBC’s approach is interesting. After stating that, ‘To ask about buying screen grabs, email the BBC Motion Gallery Sales team. To ask about using photos from the BBC News website email the News Website Permissions team.’ (BBC, 2019) it goes on to add, ‘If you’re in the UK, you may be able to use clips for educational purposes … You may also be able to use clips under the educational exceptions to copyright. Visit the GOV.UK ‘Intellectual Property – Exceptions to copyright’ page to find out more.’ (ibid.)
The platforms are more concerned about infringements occurring in the uploaded or streamed content than in the actions of consumers of that content and they reinforce the exceptions available under the legislation. Given that the clergy and / or the persons videoing the services must hold some proprietary right over the material, it would seem to lie with them to enforce any such rights.
The specific images in question are the last two in my assignment submission, figs. C1 and C2, taken during London Covid lockdown when the two churches were closed to the public.
As regards the image of Rev. Ian Welch (fig. C1) taken from Zoom, Ian had agreed to my photographing him live during a service and agreed by email to my having made stills from his online service, ‘Hi Nick … All the very best with your assignment, and I hope the material you have will be helpful’ (email 26 January 2021, fig. C3).
In the case of Revd. Liz Oglesby-Elong (fig. C2) taken from Facebook, I had not received any replies to my enquiries seeking to arrange a portrait (emails 15th and 30th November 2020). Revd. Oglesby-Elong (and/or her camera operator) is entitled to complain about my use of the stills and I could use the defences available as exemptions, fair dealing, educational use, research and private study. In practice, I would simply remove it and replace it, for purely information purposes, with a photograph of Revd. Oglesby-Elong taken at my son’s wedding in 2016.
Having examined the legal situation, the next question is ‘Can I use them in a series submitted for an assignment and claim it to be ‘my work’?’ My conclusion, based on Heinecken’s precedent and numerous other artists explored in Shore’s Beg, Steal and Borrow, is that I can, so long as the original source is made clear. In this particular instance, it is particularly permissible because part of the purpose of the series was to illustrate the way in which church congregations were accessing their forms of worship during the various stages of the Covid lockdown: the medium was an essential component of the message.
On the wider questions of the use of other photographers’ images on this site, the same defences would be available.
[17Mar21] Note the blog link to a PetaPixel article on ownership of an image of US slaves.
Notes
1. Julia Crockatt, a granddaughter of Laelia Goehr and fellow OCA photography student wrote about the Brandt portrait for her C&N Assignment 4 essay (Crockatt, 2019). In her essay research at the V&A, she found a contact sheet of more Brandt portraits by Goehr (fig. D1) and describes her reaction, ‘I thought I would see a selection of negatives of the above photo. However to my surprise, I discovered seven further negatives taken of Brandt in his home which were much more personal and much more representative of her style’.
Crockatt also corresponded with Brandt’s friend, V&A curator, Mark Haworth-Booth who wrote, ‘‘it is only a self-portrait by BB [Brandt] in that he showed her [Laelia Goehr] how to set up the camera and positioned himself to be photographed. That’s what she told me, anyway. Terrific portrait and I can quite believe that Bill had a large part in its creation’ (ibid.).
The Brandt portrait is better documented than I realised when I was studying C&N and there is justification for some attribution to Brandt himself.
References
BBC (2019) Can I use BBC content? [online]. bbc.co.uk. Available from https://www.bbc.co.uk/usingthebbc/terms/can-i-use-bbc-content/ [Accessed 12 March 2021].
Biro, M. (2011) REALITY EFFECTS: THE ART OF ROBERT HEINECKEN [online]. artforum.com. Available from https://www.artforum.com/print/201108/reality-effects-the-art-of-robert-heinecken-29044 [Accessed 11 March 2021].
Bright, S. & van Erp, H (2019) Photography decoded. London: Ilex.
Crockatt, J. (2019) Assignment 4: “A picture is worth a thousand words” [online]. juliacrockattphoto.wordpress.com. Available from https://juliacrockattphoto.wordpress.com/assignment-4-a-picture-is-worth-a-thousand-words/ [Accessed 11 March 2021].
Dex, R. (2020) ‘Shy side’ of Christine Keeler to be revealed among rare photos in Sotheby’s auction [online]. standard.co.uk. Available from https://www.standard.co.uk/go/london/arts/christine-keeler-sothebys-auction-rare-photos-a4364561.html [Accessed 28 May 2020].
gov.uk (2021) Exceptions to copyright [online]. gov.uk. Available from https://www.gov.uk/guidance/exceptions-to-copyright [Accessed 11 March 2021].
Hoy, A.H. (1987) Staged, altered, and appropriated photographs. NY: Cross River Press
Jackson, A (2020) Getting to grips with copyright [online]. urc.org.uk. Available from https://urc.org.uk/images/Communications/copyright_booklet_web.pdf [Accessed 12 March 2021].
legislation.gov.uk (2021) Copyright, Designs and Patents Act 1988 [online]. legislation.gov.uk. Available from https://www.legislation.gov.uk/ukpga/1988/48/contents [Accessed 11 March 2021].
Sharples, E. (2020) The naked truth about THAT racy photo [online]. dailymail.co.uk. Available from https://www.dailymail.co.uk/news/article-7879577/Christine-Keeler-shoot-took-three-rolls-film-perfect-photo-wasnt-nude.html [Accessed 28 May 2020].
Shore, R. (2017) Beg, Steal and Borrow: Artists Against Originality. London: Laurence King
Robinson, W. (2014) How Does Richard Prince’s Notorious “Canal Zone” Look 6 Years Later? Like Freedom [online]. artspace.com. Available from https://www.artspace.com/magazine/contributors/see_here/walter_robinson_on_canal_zone-52322 [Accessed 10 March 2021].
Sanderson, D. (2019) Booker winner Bernardine Evaristo writes off ‘cultural appropriation’ [online]. thetimes.co.uk. Available from https://www.thetimes.co.uk/article/booker-winner-bernardine-evaristo-writes-off-cultural-appropriation-bklfsqhgk [Accessed 12 March 2021]
YouTube (n.d.) What is fair use? [online]. youtube.com. Available from https://www.youtube.com/intl/ALL_uk/howyoutubeworks/policies/copyright/#fair-use [Accessed 12 March 2021].
Zoom (2020) ZOOM TERMS OF SERVICE [online]. zoom.us. Available from https://zoom.us/terms [Accessed 12 March 2021].
