The topic of ethics and legal issues in photography is vast, and calls for a book, or several. When photography began as a commercial practice there were no doubt ethical issues – should a client pay for a portrait which did not flatter him? Should a photographer take photographs of socially unpleasant or illegal activities? But today with the image-world so unmanageable and prolific, the issues have multiplied beyond comprehension.
Ethical problems arise because of deeper problems concerning the nature of representation, ownership and profit, confused by new technologies and subject to cultural and political expectations. A short discussion of some of the main points will be followed by a discussion of copyright law and intellectual copyright in the case of Richard Prince.
What images should be taken and sold? Often a photographer witnesses a horror or tragedy and captures the image on film. Should this be sold to a media outlet willing to pay a great deal for the image? Is it ethically wrong for the photographer to seek out situations like this – eg the famous “ambulance chasers” depicted in that great movie Nightcrawler with Jake Gyllenhall? A related question is famously debated about the photographs of Diane Arbus, whose whole career depended on her photographing people at ther worst, in states of emotional challenge, in red-light districts and flophouses. Should she have been enabled to make a successful career out of photographing such socially distressing scenes?
Should photographers add elements which make a scene “fake” even if elements of it are real? Codes of professional ethics insist that professional photographers do not add elements for the purpose of dramatization, and should not in any way deceive the viewers by using photographic techniques. On the other hand, art photography seems to have no such limitations, the assumption being that the viewers can tell the difference. The difference between the “real world” and the world of images and reproduction is fading fast. While journalists may understand the difference between an authentic image and a constructed one, the everyday person may not do so. There is a burgeoning confusion between image and reality which codes of ethics for professional photographers are struggling against
Related to the above: to what extent should digital improvement be permitted in professional photography? Should elements distracting from the main image be removed, eg in real estate advertising photographs? Should photomontage be allowed where a new element is added into a scene purporting to display “reality” eg in news photography. This is strictly prohibited by the codes of news photographers, for example, but people no longer just get their “news” from newspapers and “doctored” images created through Photoshop are increasingly common.
Should photographers be allowed to plagiarize, by using the techniques someone else has pioneered? Is there some kind of “copyright” on technical elements such as point of view or use of certain camera angles and vantage points? Is it unethical to sell images clearly derived from another photographer’s creativity? The famous image of the Snake River in the Teton National Park in the US, by Anselm Adams, has resulted in thousands of photographs attempting to take “the same” picture. But this is in fact impossible: the light is never exactly the same, the camera is different, the image is affected by how it is reproduced, the photographer will always be seeing something different.
When is it permissible to use someone else’s image? Thousands of photographs go up online every day and appear all over the Internet. Many are copied and re-used in different contexts – Pinterest, Instagram, Facebook – so it becomes almost impossible to track down the original photograph or its source even if one wants to give it attribution. There are some contexts in which it is permissible to use such images eg for research and education, but even so the image source still should be credited. Although copyright law differs by country, there is still an expectation that it is unethical to take one person’s image and claim it as one’s own. However, there are exceptions, and the most obvious arise in the context of Fine Art, where the use of other images is accepted as a kind of art in itself, known as Appropriation Art.
FAIR USE, APPROPRIATION ART AND THE WORK OF RICHARD PRINCE
How far can appropriation go and still stay within the boundaries of the law? This question has been tested recently especially with regard to the works of Richard Prince.
The Fair Use test has been developed as part of US copyright law as a means of defending the re-use of someone else’s works including photographic works. It consists of a number of elements which singly or in combination can give protection to someone wishing to re-use another’s work.
There are four factors in the test. Only a Federal Court judge can give a definitive answer on whether a particular use meets that test. The four factors are:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion taken
- The effect of the use on the potential market
See http://fairuse.stanford.edu/overview/fair-use/four-factors/
In 2000 French photographer Patrick Cariou published a book, Yes Rasta (Powerhouse) about the lives of Rastafarians. 
His striking photographs were the main element of the book.
In 2008 artist Richard Prince created a series of 30 art works which were based on Cariou’s paintings for a show, “Canal Zone”, at NewYork’s prestigious Gargosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, his gallerist and the publisher of the exhibition catalogue. In March 2011 US District Judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and the unsold paintings which were closely based on Cariou’s photographs.
The decision was overturned on appeal in 2013, except for five paintings which were referred for further evaluation of claims of Fair Use.
The argument in favour of Prince was supported by the Andy Warhol Foundation for the Visual Arts. Along with the Robert Rauschenberg Foundation they argued that the intellectual content and aesthetic meaning of a work of art is not always visible outside of art-historical context. The court decided that the case would depend on whether or not a reasonable observer would find Prince’s works to have been transformative, and thus protected under Fair Use. Because the case for the five paintings was settled out of court there was no legal ruling on them which has been seen as a loss for those seeking clarity in the operation of the law with regard to appropriation art.
A Report on the Settlement appears in Art in America magazine.
In the latest copyright suit against Prince, photographer Donald Graham has claimed that Prince used a photograph of a Rastafarian which he took which was an infringement of his intellectual copyright. The photograph was used in Prince’s 2014 Gargosian exhibition “New Portraits” which present prints of other people’s Instagram posts with comments.
This case differs from Cariou’s in several respects. In terms of the fourth element, the market infringement test, Cariou had made no fine art prints of his work and had not exhibited them as prints. But in the Graham case, the photographer has ONLY sold his work as prints and has never licenced the copyrighted photograph or made it available for any commercial purpose other than sale to fine art collectors. Another element of Fair Use relates to whether or not it has been used for commentary. In the present case the new photographs may be thought to be commenting on the way social media is intersecting with photography.
Another factor is the amount of copyrighted work taken. In this case, the photograph uses almost all of Graham’s image. There is a change in the framing and presentation. Moreover, the image, and the others appropriated for the show, is a striking and compelling image. It is not just the random snappings of amateurs.
However others disagree. Conceptual and appropriation art cannot be judged only on its formal and aesthetic qualities. One NYU law professor says it is “the art-law equivalent of Zombie Formalism”.
[Zombie Formalism is a new art movement based on the long discarded principles of Clement Greenberg. For a discussion, see an upcoming post on my art-writing site].
Also the market test is different because Graham has a track record as a fine art and commercial photographer and makes his living from those photographic activities. If the court finds in favour of Prince, it profoundly affects the concept of copyright in photography and maybe other forms of art.
A longer account of the legal issues.
CONCLUSION: Appropriation art based on the use of photography has increased in the Fine Art field at a rapid pace in recent years. Cases such as those of Richard Prince described above serve to highlight the extremely uncertain situation of current copyright law and tests of Fair Use. The fact that each country has its own Copyright law makes it even more complicated when cross-national jurisidictions need to decide what is ethical and what is not and even then cannot necessarily impose any penalties.
Annette Hamilton's Image Field 