The ethics of doctoring news photos [77] is discussed on the Michigan Press Photographer’s Association (MPPA) home page. This discussion is about the LIFE magazine May, 1995 photo of the Kent State shootings wherein the photo was altered from the original shot by photographer, John Filo on May 4, 1970. The alteration eliminated a pole in the center of the photograph. David Friend, Life’s Director of Photography says it was a done unbeknownst to the editors. MPPA member Brian Masck responds, saying that credibility in the source of a photo is critical to photojournalism.
Whether or not photographer John Filo has a cause of action against LIFE for printing the altered photo may be an issue of whether the terms of the print license were exceeded.[78] This type of alteration is distinguished from the traditional cropping and centering that a photo editor might do because it is a change in the substance of the photograph. In the future, photographers are advised to safeguard against copyright infringement by including in the license the amount of digital manipulation allowed.[79]
However, copyright may not be the best or even the only issue regarding authenticity of news photographs.[80] Again, the chain of contracts between publisher, photographer, stock agency and photo subject may present legal issues such as false light or misappropriation.[81] The news photographer is again advised, to keep original photos to protect against actions like this and to be especially careful if photographing with filmless cameras where a photographer will not possess a negative.[82]
Alteration of news photos is not a new issue. But new copyright issues pop up in the context of on-line news photo alteration. On the one hand, alterations can be “subtle pixel-by-pixel changes’` that are difficult to detect.[83] This capacity makes it easy to steal on-line photos in toto or in part.[84] The problem here is a photographer’s burden of proof as it relates to the “ordinary observer’` approach in proving substantial similarity in an infringement action.[85]
Photojournalism reviewer Ken Kobre examines The Long Tradition of Doctoring Photos.
Mr. Kobre notes that a recent edition of The National Enquirer displayed a doctored photo of a battered Nicole Brown Simpson.[86] The Enquirer noted in small type that the photo was a recreation.[87] Rather than shying away from the technology and the potential abuse of altering on-line news photos, Mr. Kobre believes that increased photographic access assists in the discovery of truth. “Totalitarian regimes have been more adept at controlling- and changing what people see precisely because those regimes control their media.” [88] In the end, “The credibility demanded of journalism should continue to shape its uses of the computer’s capabilities.’`[89]
NET USERS
Everyone agrees that Net Users, like most Americans, have little knowledge of copyright law.[90] Digital works have some unique characteristics which challenge copyright law.[91] Three of those characteristics include ease of replication, transmission, and alteration.[92] The Net allows for quick replication and transmission of works as compared to traditional replication methods.[93] Modification of Net documents may also provide some challenges to a court’s interpretation of “fixed.’`[94]
POSTING AND DOWNLOADING PHOTOS
With regard to replication, transmission and alteration, some Net users behave as if all Net information is up for grabs whether or not the material is copyrighted and has a copyright notice.[95] Celebrity fan club postings like the Brad Pitt Web Site are examples of users posting copyrighted photos to the Net. This home page acknowledges that these photos are copyrighted so “please be nice.’` This acknowledgment confirms the Samuelson and Glushko observation that “those who post information not authored by them on Internet bulletin boards or in electronic newsletters delivered by Internet sometimes do so with a conspicuous notice that it is being posted without copyright permission, thereby asserting the poster’s view of an appropriate scope of fair use.’`[96] Furthermore, “net users generally regard it as fair to download items from the bulletin board for one’s personal use, and even to send a copy to a friend who might otherwise not see the item, it is considered bad manners (or worse) to redistribute more widely someone else’s posting without its author’s permission.’`[97] It goes without saying that policing user behavior as it relates to copyright is difficult at best.[98]
ONE PUBLISHER’S VIEW OF DOWNLOADING WORKS
Recently Time posted Sports Illustrated swimsuit issue photos for personal downloading at the Pathfinder Website that ended up on one of the Supermodel websites. Time’s legal head Harry Johnston said “The restriction is that you can download these pictures for personal use only, but not for further distribution. That would constitute an infringement.’`[99] “The idea of policing every single individual who might violate someone’s copyright has not existed for the last 30 years, with the advent of Xeroxing and videotaping. It’s just a fact of life with the technological means we have of making copies. You simply can’t catch them all, says Mr. Johnston.’`[100]
User liability for copy right infringement in a non commercial context is a disputed issued.[101] A user posting someone else’s photo to a bulletin board or a homepage raises questions of which fair use provision might be appropriate? Education, research, comment or criticism?[102] Ms. O’Rourke predicts that users are infringing where a bulletin board subscriber forwards a document to a large number of non-subscribers.[103] But what about home pages? In this context other Net users link to the page. Is the activity of posting Brad Pitt photos to a home page substantially different than uploading Playboy photos to a bulletin board?[104] In the Playboy case the court found that a bulletin board operator “violated Playboy’s exclusive rights to display and distribute its photos.’`[105] While home page authors are not charging a subscription fee like the bulletin board operator, they are offering unauthorized, copyrighted photos for public display. In the context of the homepage author, the issue is not that someone is making money off the photo, but that an individual photographer could lose the market for a great photo when someone scans it into a homepage for all the world to access.
AN AGENCY VIEW OF POSTING
Jim Roehrig, president of Outline photo agency, takes the position that “unauthorized posting is a violation of the copyright holders’ exclusive rights to distribute and publicly display their work.’`[106] Outline represents fashion and celebrity photographers. Roehrig admits to being at a loss as to how to handle supermodels postings.[107] Right now Roehrig says, “I’m hoping that this is relatively small usage and won’t become a regular thing.’`[108]
THE USER’S RIGHT TO VIEW
But what about Net user’s right to view and access information. Copyright law clearly protects the copyright holder. One of the goals of the National Information Infrastructure is free or low cost information.[109] The suggestions of the Green Paper drafted by the federal government’s Information Infrastructure Task Force are controversial.[110] See also a Response to NII.
Ms. Litman says that the draft recommendations would vest in copyrightowners “control of any reproduction or transmission of their works, and thendefines reproduction and transmission to include any appearance, even afleeting one, of a protected work in any computer, and any transfer of thatwork to, from, or through any other computer, the Draft Report’srecommendations would enhance the exclusive rights in the copyright bundle sofar as to give the copyright owner the exclusive right to control reading,viewing or listening to any work in digitized form.’`*ahref=” KB4_fn.html#fn111″[111] And where are the rights of users? Litman quotes the report, “Users are not granted any affirmative ‘rights’ under the Copyright Act; rather, copyright owner’s rights are limited by certain exemptions from user liability.’`[112]
Ms. Litman argues against any change in copyright law that would vest copyright owners the right to control reading, viewing or listening.[113] She says that under current copyright law display is distinguished from reproduction which requires fixation in a form which is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.’` [114] Ms. Litman believes reading a work into a computer’s memory “is too transitory to create a reproduction within the meaning of section 106(1)’` of the copyright act.[115]
Ms. Litman questions the Report’s assumption that enhanced copyright protection is in the public’s best interest.[116] She says that because the copyright laws are essentialy written by copyright holders, those interests are served by the law, whereas the users never get invited to the table.[117] Litman suggests that Congress and the Copyright office are responsible for truly representing the public’s interest and not merely equating the public’s interest with that of copyright holders.[118] She addresses the presumption that creators need to be bribed with promises of full control of their work by pointing to the reality that electronic publications and authors are releasing their work on the Net right now, without any promise of protection.[119]
As to the issue of scanning images into computers, author David Loundy is emphatic in his view of copyright protection, “Images that are scanned are in violation of the original copyright holder’s rights, unless permission to distribute the scanned image is obtained,’` whether or not the image is further distributed.[120] This view seems to be precisely Ms. Litman’s concern regarding the protection of the user’s right to view. Of course scanning an image, eliminating the copyright notice and distributing the photo is a matter of serious concern to copyright holders.[121]
Conclusion
Only time will tell what Net users, Net photogs and Net publishers ultimately determine to be fair use. To state the issue succinctly, “Fair use is always subject to interpretation.’`[122]
[FNa J.D. Candidate 1996, Georgia State University School of Law. This paper was written as part of Professor Patrick Wiseman's Summer, 1995 Law and the Internet class. Thank you to Chas Underwood for this introduction into the photography world and Jamey Rousey for technical support and cocktails. Comments, corrections and correspondence is welcome, please contact the author at dixie@mindspring.com.
1 Gary Panetta, Changing Reality Gallery Walk, PEORIA JOURNAL STAR, April 24, 1994
2 Philip Greenspun, How I Got Rich & Famous (or at least famous) On the Internet, PHOTO DISTRICT NEWS, July, 1995 at 58.
3 Jonathan A. Franklin, Digital Image Reproduction, Distribution and Protection: Legal Remedies and Industry wide Alternatives, 10 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347 (1994)
4 Richard Weisgrau & Michael Remer, Copyright Guide for Photographers.
5 Id.
6 Jonathan A. Franklin, Digital Image Reproduction, Distribution and Protection: Legal Remedies and Industry wide Alternatives, 10 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347 (1994)
7 Weisgrau & Remer, Copyright Guide for Photographers,
8Sally Wiener Grotta and Daniel Grotta, What’s New In Filmless Cameras, PHOTO DISTRICT NEWS, 58, March 1995.
9 Don E. Tomlinson and Christopher R. Harris, Free-Lance Photojournalism in a Digital World: Copyright, Lanham Act and Droit Moral Considerations Plus a Sui Generis Solution, 45 FED. COMM. L.J. 1, 8 (December, 1992).
10Russ Versteeg, Jurimetric Copyright: Future Shock for the Visual Arts, 13 CARDOZO ARTS & ENT. L.J. 125 (1994).
11 Id.
12 Id. at 133 (quoting 991 F.2d at 518 (9th Cir. 1993)). This essay presents the problematic relationship between copyright as it relates to computer decisions and the unique aspects of the visual arts.
13 Id. at 132.
14 Id.
15 Robert A. Cinque, Making Cyberspace Safe for Copyright: The Protection of Electronic Works in a Protocol to the Berne Convention, 18 FORDHAM INT’L L.J. 1258 (1995)
16 Id.
17 Id.
18 Id.
19 Id.
20 Id. (citing Berne Convention, 17 U.S.C. sec 102(1) (1988 & Supp. IV 1992) art. 9(1) and MAI systems Corp. v. Peak Computer, 991 F.2d 511 (9th Cir. 1993)).
21 Robert A. Cinque, Making Cyberspace Safe for Copyright: The Protection of Electronic Works in a Protocol to the Berne Convention, 18 FORDHAM INT’L L.J. 1258 (1995) (citing Berne Convention art 7(6).
22 Cinque’s note explores several complex areas of international copyright law see Robert A. Cinque, Making Cyberspace Safe for Copyright: The Protection of Electronic Works in a Protocol to the Berne Convention, 18 FORDHAM INT’L L.J. 1258 (1995).
23 Jennifer T. Olsson, Rights in Fine Art Photography: Through A Lens Darkly, 70 TEX. L. REV.,1489, 1500, (May, 1992). This article reviews fine art copyright and the Visual Artist Rights Act of 1990.
24 Id. at 1501.
25 Id. (quoting Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532, 1536-37.
26 Jonathan A. Franklin, Digital Image Reproduction, Distribution and Protection: Legal Remedies and Industry wide Alternatives, 10 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347 (1994). See also Benjamin R. Seecof, Scanning Into the Future of Copyrightable Images: Computer-Based Image Processing Poses a Present Threat, 5 HIGH TECH. L.J. 371 (1990).
27 Id.
28 David Walker, Consulting Firm Forms Copyright Clearinghouse, PHOTO DISTRICT NEWS, April, 1995 at 30.
29 Pamela Samuelson and Robert J. Glushko, Intellectual Property Rights for Digital Library and Hypertext, 6 HAV.J.L. & TECH. 237 (1993)
30 Don E. Tomlinson and Christopher R. Harris, Free-Lance Photojournalism in a Digital World: Copyright, Lanham Act and Droit Moral Considerations Plus a Sui Generis Solution, 45 FED. COMM. L.J. 1, 29 (December, 1992).
31 Id.
32 Jonathan A. Franklin, Digital Image Reproduction, Distribution and Protection: Legal Remedies and Industry wide Alternatives, 10 SANTA CLARA COMPUTER & HIGH TECH. L.J. 347 (1994)
33 Id.
34 Id.
35 Id.
36 Kevin J. Harrang, Licensing Issues Creating and Publishing Multimedia Software Products, 394 PLI/PAT 361 (1994)
37 Id.
38 Id.
39 David Walker, Continuum Opens All-Digital Stock Agency, PHOTO DISTRICT NEWS, March 1995 at 26.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 William Strong, Copyright in the New World of Electronic Publishing, Journal of Electronic Publishing. Original paper presented at the workshop Electronic Publishing Issues II, June 18, 1994.
47 Id.
48 Id.
49 Richard Weisgray & Michael Remer, Copyright Guide for Photographers, 1991
50 Kevin J. Harrang, Licensing Issues Creating and Publishing Multimedia Software Products, 394 PLI/PAT 361 (1994)
51 Id.
52 Id.
53 Id.
54 David Walker and Nancy Madlin, Time Contributors Split on E-Rights, PHOTO DISTRICT NEWS, April, 1995 at 20.
55 Id.
56 Id.
57 Id.
58 Id.
59 Id. at 21.
60 Id.
61 Id. at 23.
62 Id.
63 William Strong, Copyright in the New World of Electronic Publishing, Journal of Electronic Publishing. Original paper presented at the workshop Electronic Publishing Issues II, June 18, 1994.
64 Id.
65 Id.
66 David Walker, Photogs Dispute Life Re-Use Rights for CD, PHOTO DISTRICT NEWS, March, 1995 at 30-31.
67 Id.
68 Id.
69 Id.
70 William Strong, Copyright in the New World of Electronic Publishing, Journal of Electronic Publishing. Original paper presented at the workshop Electronic Publishing Issues II, June 18, 1994.
71 Id.
72 William Strong, Copyright in the New World of Electronic Publishing, Journal of Electronic Publishing. Original paper presented at the workshop Electronic Publishing Issues II, June 18, 1994.
73 Newsweek Goes On Line, PHOTO DISTRICT NEWS, March, 1995 at 16.
74 Id.
75 See, Jonathan C. Jackson, Legal Aspects of Computer Art, 19 RUTGERS COMPUTER & TECH. L.J. 495 (1993).
76 Don E. Tomlinson and Christopher R. Harris, Free-Lance Photojournalism in a Digital World: Copyright, Lanham Act and Droit Moral Considerations Plus a Sui Generis Solution, 45 FED. COMM. L.J. 1, 29 (December, 1992).
77 For a discussion of computer altered photos and the tort of false light invasion of privacy, See Jon Lawrence Dartley, Lost Horizons?: Tortious and Philosophical Implications of Computer Imaging, 19 RUTGERS COMPUTER & TECH. L.J. 199 (1993).
78 Don E. Tomlinson and Christopher R. Harris, Free-Lance Photojournalism in a Digital World: Copyright, Lanham Act and Droit Moral Considerations Plus a Sui Generis Solution, 45 Fed. Comm. L.J.1, 29 (December, 1992).