PERSONAL DEVELOPMENT PLANNING – Worksheet 1 – ETHICAL AND MORAL PROBLEMS FOR CLIENTS, AUDIENCES AND MARKET USERS

PERSONAL DEVELOPMENT PLANNING 2A

CLIENTS, AUDIENCES AND MARKET USERS – LEGAL, ETHICAL AND MORAL PROBLEMS

Relates to Outcomes: 1 and 2

 Introduction:

As an introduction to Clients, Audiences and Market Users as part of our Personal Development Planning, lectures have been focusing on examining legal, ethical and moral issues surrounding the high key profile imaging of the celebrity. The use of Photoshop was scrutinized, which raised some fundamental ethical and moral issues that have turned out to have legal connotations. Below are a series of magazine covers and photographs depicting Kate Winslet at the age of 38 being airbrushed to perfection by Vogue Magazine (2013) and made to look more like an 18 year old.

Issues around photographers responsibility to client – moral and legal

Case Study One:

Ethical debates were raised as to the validity of altering appearances in such a way that Kate felt that such alterations would damage her celebrity status, making her appear vain and untruthful, as well as influencing others in a negative way (i.e. the impressionable young).

Kate Winslet on the cover of Vogue, 2013 Questioning: ''Should there be a code of ethics which governs 'retouching'?''

Kate Winslet on the cover of Vogue, 2013
Questioning: ”Should there be a code of ethics which governs ‘retouching’?”

Where do you stand morally?

Kate is again depicted on the cover of GQ Magazine in 2003 wearing a scantily clad outfit. If Kate was ok with this, then why should she complain if the magazine attempts to make her look even better? Why would this bother her so much? Surely, they asked her permission? She must have agreed to pose in this way…?

Kate Winslet on the cover of GQ (2013) Magazine raising the moral issues of photoshopping/extending the length of her legs and making her appear slimmer

Kate Winslet on the cover of GQ (2013) Magazine
raising the moral issues of photoshopping the length of her legs and making her appear slimmer

Kate as she is at 38

Kate as she is at 38

Kate depicted right is how she actually looked at the age of 38.

Is there anything wrong with being depicted as you are?

Some celebrities go on record as not being photoshopped and campaign against it. Who has control over your image? Is it the photographer or is it yourself?

Brad Pitt and Jessica (see cover below) go on record as having no make up/and no photoshopping..

Article taken from the Huffington Post (09.10.2014)

http://www.huffingtonpost.com/2013/10/14/kate-winslet-vogue-photos_n_4096789.html

slide_237237_1194118_free

Analysis:

The subject matter I feel is one that requires a great deal of consideration prior to signing a contract. Know your rights before commiting yourself to anything and if you feel for a moment that you may be misrepresented then do not sign the contract. If such an event occurs then any individual must retain the right to have that image removed if they do not approve of the context in which it is given. A reasonable amount of Photoshopping ought to be allowed but it is difficult to define what is meant by ‘reasonable’. This is why it is so important to agree on the terms of conditions prior to the photograph(s) being taken. If famous names such as Kate Winslet cannot control their own images what chance do the general public have? (see Phillipines banning Street Photography issue for more information – under Moral Responsbility of Audience)

Rights over an image: (Misuse Legal)

Case Study One:

According to Law 360 (published by Kurt Orzeck, Rod Stewart was ”slapped with a 5 million dollar infringement suit over a photograph taken by Bonnie Schiffman in 1989.’http://www.law360.com/articles/574723/rod-stewart-slapped-with-5m-infringement-suit-over-photo‘.

Bonnie Schiffman claims that the defendants used an image of the back of his head and shoulders that unmistakably copies an image of hers that was licensed nonexclusively. Schiffman turned down a $1,500 offer by Stewart for reuse of the image on a billboard for a campaign called “Rod’s Back,” and allegedly discovered the so-called replicate image, which was also allegedy appearing at his live performances, on signs, in print ads and elsewhere in February 2013.’ The image of Stewart from 1981 was registered with the U.S. Copyright Office, according to her suit. An offer of $1,500 fee was declined stating that it was too low, after which the representative said he wouldn’t offer a higher fee and that they would find another photo elsewhere.’

Analysis:

This suit starts off the debate on having rights over an image. My opinion is that, as with all the case studies represented here, decisions made about the case studies involved, ought to come down to an individual basis for deciding who is legally obligated. I feel that this example is somewhat difficult as it is just an image of the back of someones head (i.e. Rod Stewart). It could, in all fairness, belong to anyone. What sets the image apart is its design, which has clearly been copied and that therefore is an infringement – the conceptual idea itself has been taken and used elsewhere without permission being sought when clearly there was a some of money offered then refused. If the photographer created the design itself, then copyright has been compromised.

Case Study Two:

The Premier League (according to the Guardian: February 2014) are also haggling over Wayne Rooney’s image rights in order to secure a deal with Manchester United. ESPN staff state: ”While Rooney’s potential salary and performance-based incentives – (which could see him earn up to £300,000-a-week) – are understood to have been settled by the player’s camp and United executive vice chairman Ed Woodward, it is reported that both sides are haggling over the percentage of the player’s image rights.” Rooney’s representatives may be looking to hold on to a percentage for the 28-year-old in order to keep open the prospect of securing other lucrative commercial deals.

However, United wish to gain control over Rooney’s image in exchange for his vast weekly salary, which is set to be a record figure for Premier League wages and could land him around £70 million over the course of the reported four-and-a-half year deal. It is not thought the issue will affect the overall outcome of Rooney penning a new contract and the deal could be announced as early as Friday.

Analysis:

Rooney is a famous football player, Captain of the England Squad and yet still is subject to negotiating control over his images. This again raises the debate who owns the images – the photographer, the company the photographer is employed by or the person in the photograph? Rooney could make a fortune selling his images to magazines across the world but in this case I would think, the company (which would be the Premier League I presume?) would gain the rights to control the image so the photographer and the subject would not have the rights to any image. I find this morally objectionable as corporate organisations seem to have control over everything as they have the lawyers and man power to do this. Whether Rooney would gain the rights if say he was leaving the grounds of a football stadium still dressed in his football gear (and therefore representing the Premier League?) would he still be subject to them owning the rights if he was having a private conversation with his wife?

Misuse of images (moral and ethical – misrepresentation)

Case Study One: Journalist examines how photoshop has become a symbol of unobtainable and cultural standards of beauty.

The reporter Ester Honig works both in broadcasting and print mediums, took it upon herself to document her life. In an interesting social and image conscious experiment Ester set out to have a portrait photograph taken of herself in order to question if there were any social, cultural constructs of beauty to a previously unaltered image. Her only criteria was that they ‘make me beautiful’. Costs varied but were relatively inexpensive.  Two examples have been given below, more comparisons can be made by clicking on the website.

Ester writes: ”The images intriguing and insightful in their own right; each one is a reflection of both the personal and cultural concepts of beauty that pertain to their creator.”

Photoshop allows us to achieve our unobtainable standards of beauty, but when we compare those standards on a global scale, achieving the ideal remains all the more elusive.

(A Follow up was carried out on June 24th, 2014 ‘Before & After’ went viral. The original publication on Buzzfeed recieved more than 2.5 million views and it was reported on in more than 30 countiries around the world. Included in more than two dozen wellknown publications, Before & After was featured by TIMEThe Atlantic, Vice Magazine and The Chicago Tribune. Honig appeared on CNN Internatinoal, Al Jazerra, Good Morning America, The Today Show and CTV). 

http://www.estherhonig.com/#!about1/c1ks9

Analysis – Research/Presentation:

I will be carrying out my own pocket research asking fellow photographers to get involved in order to give comparisons as to how they would alter images in connection with what I feel would be appropriate. Carrying out a series of portrait shots and using one image only, each individual will be asked to photoshop what they feel appropriate. The results of which will be highlighted below.

If you would like to participate in this survey, please get in touch via email: paulasphotography101@gmail.com

update: With my suggestion, we have collectively decided to try this out as a classroom activity. The results of which are posted in my other PDP exercise on the blog.

Case Study Two:

In this case, the photographer was the one who allegedly breached moral and ethical misrepresentation, as Yan Morvan ‘breached one of his subjects right to control his own image’. The subject, ‘Mathieu’ brought a second lawsuit against the photographer and his publisher, claiming that the photograph ”Didn’t represent his current beliefs and that he should own the rights to his own image”. (According to Oliver Laurent: British Journal of Photography, 2013).

The court found in his favour, ordering the photographer to pay a €5000 fine and the book publisher to withdraw the book immediately.’ The case highlighted has ethical and moral implications. Two opposing rights were pitted against each other – one defending the right to control his own image and the other the right to inform. In this particular case, the ”right to control your own image” was introduced by French Minister Elisabeth Guigou in 2000, winning over the right to inform.

gangs-story-by-yan-morvan

As Yan Morvan has been documenting gangs in France’s suburbs for 40 years (following Hell’s Angels, Skinheads and even serial killer Guy Georges, who took him hostage in 1995) it does seem rather biased to alienate Morvan and ban him from producing his book who isn’t photographed so that he would be instantly recognisable. However, he is seen to be posing with a flare gun and a hammer. Subsequently Morvan was sued by his subject and forced to remove the image from the book.

In 2013, after Morvan partnered with Kizo, a former gang member, on the production of a new documentary about France’s suburbs, the book publisher La Manufacture de Livres re-edited Gangs Story, adding a new series of images shot between 2009 and 2012. Also included in the final edit was Mathieu’s portrait.

Morvan states that he now does not plan to appeal the court’s second decision saying that his doesn’t have the money to pay for a lawyer.

Analysis:

It is very unfortunate that this photographer became subject to being tortured after dedicating his craft of 40 years to the subject matter of gang culture. His series of studies clearly depicts the gang in a less than complimentary manner, and when the subject has ‘turned his life around’ you can understand why he would not want to continue to be represented in this way, regardless of how much of the photograph revealed of his face. Social documentary and street photography is an area of photographic study that is fraught with difficulties as to who owns the photo and giving rights to display it. I feel a law ought to be passed to protect all of the individuals represented. Personally speaking, I would not want anyone to display a photograph that I was not feeling completely confident about for whatever reason. A fine for the photographer at the same time, is unreasonable. It would have been difficult enough for the photographer (who became subject to removing the image, potentially damaging his career) to have an additional burden of a fine. Who in this case, is protecting the rights of the photographer?

Case Study Three:

Another example of moral and ethical misrepresentation is Christian Lutz (Laurent, February 2013: BJP), who is a Swiss Photographer in a legal battle to publish a photobook.

In Jesus’ Name, (2012), is Christian Lutz’s third book in a series documenting power around the world. In 2007, the Agence Vu photographer published Protokoll on political power, and Tropical Gift in 2010 on economic power. In Jesus’ Name documents religious power and is the result of an investigation within the International Christian Fellowship, “one of the most important free churches in Switzerland”, says the photographer.

However, legal proceedings filed by a group of 21 people Lutz had photographed have put a stop to the book’s production. The group argues that it never granted Lutz the right to use their image, a fact the photographer denies.

“A judge [at Zurich civil court] confirmed the decision to block the release of the book on 24 January,” Lutz tells BJP. “We have now asked for the writ, which we should get in the next few weeks. Once we get it, we’ll decide whether or not we appeal, but I can already say that the publisher [Lars Müller Publishers] and I are getting ready for a potential lawsuit.”

Lutz first met Leo Bigger, the founder of the International Christian Fellowship in May 2011. “He then introduced [Lutz] to the other church managers to whom the photographer also presented his project, his former books, his approach and the stakes involved in his Trilogy,” reads a statement released by the Musée de l’Elysée, which is supposed to exhibit Lutz’s work later this year.

“He was subsequently granted express consent from the managers who welcomed him in the community. The photographer nonetheless still systematically kept requesting specific authorisations to the organisers for each ICF activity in which he wished to participate and photograph.

“He joined in several trips and summer camps organised by the church, and took part in all sorts of events: celebrations, baptisms, ladies lounges, blood donations, theatre shows, workshops on the addiction to pornography. He met members of the church, exchanged constantly with them, and freely discussed his reportage.”

The statement continues: “He was given an ICF photo-reporter badge, and affiliates or organisers of activities regularly ordered prints from him. He thus photographed openly, each one being aware of the project and accepting to be part of it.”

The photographer, along with the Musée de l’Elysée and Lars Müller Publishers, have called the ban a “breach of freedom of speech and of artistic expression”. They add: “In a non-partisan way, In Jesus’ Name highlights the functioning of a religious enterprise and of the individual sharing this living together.”

Already, more than 70 photographers, curators and editors have joined a committee to support Lutz’s work. For more details, visit the Agence Vu’ website.

Image courtesy Christian Lutz and Agence VU

Image courtesy Christian Lutz and Agence VU

Analysis:

It appears to me in this case that the photographer in question, Lutz, went to great lengths to request access and ask for permission to photograph in each scenario documented. I cannot help wonder what images the religious enterprise organisation are so concerned about being published. If such images show the religious enterprise in a negative light it could be understood. However, I do not consider that Lutz and his publishers (Lars Muller) could call the ban ”a breach of freedom of speech and of artistic expression”. On an individual basis, within the Church Organisation, I could possibly understand them objecting to the photobook being published. On a collective basis however, the Church Organisation must have asked individual permission of each member of its organisation prior to the photographs being taken? It is an interesting legal and moral dilemma case. Who has the rights to control the image? If the photographer sought permission from the Church (which he clearly did), surely they as a collective have a moral obligation to see the project through to completion? Although, if the individuals concerned do not wish to have their photographs displayed (perhaps in order to conceal their identity as they may feel that they do not wish to be recognised as being a part of the Church for employability reasons or medical for example), then the rights of the individual must be upheld. A model release form for each member represented in photographic form may have dealt with this matter successfully.

Issues around reasonable payment:

Case Study One:

Although this case study fits into a legal issue, I feel that the issue is more centred around reasonable payment. A Wedding Photographer was recently sued by a couple for ‘woefully inadequate images’, in that, out of 400 images, only 22 met with the couples approval. They were subsequently awarded compensation after suing for ‘breach of contract’.

Marc and Sylvia Day were awarded compensation after they were left with photographs with the heads chopped off and a video in which the tripod fell over and the cameraman could be heard to swear. After their story made national headlines a number of businesses in Wakefield, West Yorkshire, offered to pay for a second wedding for the couple.

The Days originally spent £1,450 to hire Gareth Bowers, but of the 400 images they were sent, only 22 were of an acceptable standard. In a further insult to the occasion, Mr Bowers, of Fresh Images photography, misspelled their names on thank you cards, bearing a variety of the pictures, which read: “Thank you Slyvia and Mark”. To top it all the couple, who selected Mr Bowers after visiting 11 wedding fairs, have still not received their album more than a year after they tied the knot.

They were awarded compensation by a judge at the beginning of October after winning a case for breach of contract against the photographer. Mrs Day, 50, a shop assistant, from Wakefield, West Yorkshire, said: “He seemed very reasonable, very polite and professional. ”But we were left with no alternative but to take this man to court because the service we received was absolutely appalling.” Deputy District Judge Keith Nightingale, found in favour of the Days at Pontefract county court and criticised Mr Bowers for providing “inappropriate” photos and a “woefully inadequate” service.

Mr Bowers told the court he had been in business for four years and in that time covering just 20 weddings. He was ordered him to pay back £500 from the £1,450 to the Days with £450 in damages, £100 for their loss of earning and £170 in court fees. Mr Day stated: “Some of those memories we will never get back again. He is the Don Quixote of wedding photography – he just doesn’t believe that he can’t do it.”

http://www.telegraph.co.uk/news/newstopics/howaboutthat/6390515/Married-couple-who-sued-wedding-photographer-recreate-their-nuptials.html

The Photographers Defence:

Gareth Bowers, 23, has apologised unreservedly for causing “upset and distress” to any of his clients. Bowers states: “I believe I am a great photographer, technically and creatively. But I am the first to concede that in some cases perhaps the business skills weren’t quite 100 percent.” Marc and Sylvia Day forked out £1,450 but claimed they never received a single print. They sued Mr Bowers and his company Fresh Images, which has now been dissolved.

Now more couples have come forward – Phil and Joanne Hammond, of Normanton, West Yorks., are considering legal action after allegedly spending a year trying to get their photographs. Like the Days, they still only have a computer disc of poor quality photos.Of the Durand’s wedding, Mr Bowers said he completed his contract on the day and he refunded their money.

Bowers also stated: “I take several hundred photos on the day and the clients will choose which become part of their album. The bad ones are only the daft photos.”

http://www.telegraph.co.uk/news/uknews/6283530/Wedding-photographer-defends-his-pictures.html

Analysis:

There are many questions with regards to this case study. It is clear that inadequate research on the part of the couple seeking to document their wedding did not help with the matter. However, paying a high amount of money (or average) does not necessarily mean that the photography will be the best. It pays to investigate. Anyone in the photography world can become a member of an organisation with letters after your name. A degree in a subject would give the purchaser some indication of skill. A portfolio of images and checking who else has their had their wedding photographs taken by the same photographer is also sensible. Making a contract and explaining to your photographer what it is you want from your wedding day is also crucial. Agree time limitations and be aware that in hiring your photographer they will be working in a professional capacity but cannot be expected to stay until midnight documenting your wedding. If you go through these details, you will know where you both stand. Enable your photographer to be creative and allow your guests to be gathered together. If you desire that your photographs be taken informally and unobstrusively then indicate this to your photographer. This does not mean that the photographer simply fails to frame you in your photograph. Expect to have more than 22 photographs! You should, in fact, be spoilt for choice when it comes to putting photographs in an album.
When it comes down to it, failing to provide these crucial images can be soul destroying. How else are you going to recapture your day? Once these moments are lost, they are lost for forever. I have placed this in this category rather than as a legal issue because ultimately it comes down to how many photographs have actually been supplied with, that both the bride and groom feel are of sufficient quality. The photographer does try to defend his unprofessionalism albiet unsuccessfully, the photographer in this case has a great deal of responsibility to ensure that the photographs are of consistent quality and quantity. Failing to do this is a reflection on other professional photographers working in this genre which is not acceptable. It is vital in the wedding photography business to be organised, not to swear and fulfil your obligations. However, in the same vein it is of equal importance not to take advantage of the photographer.
There could be that there is a valid reason i.e. extreme extenuating circumstances in not providing photographs (torrential weather at an outdoor event for example). However, working in a professional capacity it would be appropriate to cover the event under such circumstances by arranging to shoot on another day or by simply going indoors. Extenuating circumstances can and always will provide a problem for the wedding or on location photographer, one simply has to find a way around such occurrences where possible and to this extent, a clause in your contract with your bride and groom should cover all eventualities in order to protect both yourself and the bride and groom.


Case Study Two:

In Photographers UK, there is an indepth section advising the individual how much to pay for a portrait photographer. However, if the photographer pays an annual subscription of 49.99 they can upload their photographs and advertise without the need for any checks on their work (other than the online portfolio of photographs submitted).

If you are either a potential customer looking to see how much you should pay for a set of portrait photographs or a portrait photographer wondering if your pricing is right then this article will be of interest to you. There are no hard and fast rules as to how much you should be paying for portraits. The difference in price between photographers can be large and just because one charges a higher price than another it doesn’t always follow that you will get a set of portrait photographs that are necessarily better.

The forum/directory states: ”The good news is that it is getting easier to see the quality of a photographer’s work before you hand over any of your hard earned cash to them and then find that the end results are disappointing. More and more photographers are putting their portfolios online so that you can see the style of the portraits that you will get as well as the quality. If I were booking a portrait photographer I would have no hesitation in checking out their website and adding them to a potential shortlist before going to see them. ” They also advocate a sensible approach where they state that creating a good photograph can take a lot longer than you think, especially if you are not the type to relax in front of a camera.

http://www.photographers.co.uk/html/portrait-photographer.cfm

Analysis:

This one website brings up the debate of ”reasonable payment” with clarity. It is evident that there is not a guide available when it come to professional standards and expectations (as discussed in the last case study).

How much you pay for a portrait photograph is fundamentally your decision. As there is not a universal standard which governs quality or quantity ”reasonable payment and quantities” are crucially important. Signing a contract and talking to your photographer and inspecting their previous work carefully before making your final decision is a must. These days there is certainly more choice concerning the type of portraits that you end up with and if you can find the right photographer then you will be well and truly rewarded.

Issues around copyright and licensing

Introduction:

First and foremost, before giving examples of case studies where the issues around copyright and licensing apply, I have included a list of representatives who aim at protecting the rights of all professional photographers, starting with the AOP. I will then give a brief description of who owns copyright and other issues pertaining to this query. Photographers can join these organisations who give and add support in terms of advice, conditions, paperwork and so on.

The AOP represents the interests of and aims to improve the rights of all professional photographers in the UK, as well as promoting the highest standards of work and practice across the industry.
Email: info@aophoto.co.uk
www.the-aop.org

British Institute of Professional Photography – BIPP

The British Institute of Professional Photography is the premier qualifying body for professional image makers in the UK with over 3500 members covering every type of photography. The BIPP represents professional image making to government and industry.

Email: info@bipp.com
www.bipp.com

Royal Photographic Society – RPS

The RPS, founded in 1853, exists to promote every aspect of photography.
It does so by organising lectures, workshops and other educational activities; by mounting exhibitions; by publications; and by maintaining an outstanding collection of photographic books, images and equipment.
The UK Intellectual Property Office – IPO

The UK IPO (formerly known as the Patent Office) aims to stimulate innovation and enhance the international competitiveness of British industry and commerce. They offer customers an accessible, high quality, value for money system both national and international, for granting intellectual property rights.
Email: information@ipo.gov.uk
www.ipo.gov.uk
Email: reception@rps.org
www.rps.org

Who Owns Copyright?

Whoever created the image is the author but an author could be a writer, composer, artist or producer or the publisher themselves or any other creator depending on the type of work.

What Does the Copyright Protect?

Copyright covers all things but there are exceptions to the rule and this is why having insurance and seeking legal advice is the best course of action to ensure that where possible, the owner is protected. One important exception to this is when an employee creates a work in the course of their employment by a company they are working for. In which case the copyright owner will be the employer unless it specifically states otherwise in a employment contract. If a photographer is in doubt at all, then seek legal advice and read through the fine print to ensure your rights.

The main categories of works currently protected in the UK include:

  • original literary works such as novels or poems, table of lists and computer programmes
  • original dramatic works such as dance or mime
  • original musical works, i.e. the musical notes themselves
  • original artistic works such as graphic compositions (paintings, drawings etc), photographs and sculptures
  • sound recordings
  • films
  • broadcasts
  • typological arrangements (i.e. the layout or actual appearance) of published editions

Copyright infringement:

It is an infringement of copyright to do any of the following acts in relation to a substantial part of a work which is protected by copyright without the consent or authorisation or the copyright owner:

  • copy it
  • issue copies of it to the public
  • rent or lend it to the public
  • perform or show it in public
  • communicate it to the public

What can we do about copyright infringement?

As mentioned above, for infringement to take place it must involve a substantial part of the work. The actual term substantial however is subjective and open to query. And so it is often said that if something is worth copying it is worth protecting. Secondary infringement may occur is someone without permission imports an infringing copy, possesses or deals with a creative piece or provides the means for making and duplicating it.

There are a number of remedies a copyright owner can obtain in a civil action for infringement. These include seeking an injunction to prohibit further infringement, damages for loss, an account of the infringer’s profit, an order requiring the infringer to deliver all infringing articles to the owner or the right to seize such copies. There are certain acts conducted without a copyright owner’s consent which may be classed as a criminal offence and may result in fines and/or imprisonment. If a person commited an offence knowlingly then that act would be an infringement. A company can be guilty of copyright infringement as can an officer of the company who consented or aided an infringement.

This information is a basis for copyright knowledge for my seperate case studies and was obtained from the CLA UK Website – this information has been used for guidelines only and are not specific or appertaining to each case mentioned.

Case Study One:

According to Alyson Shontell (Feb. 28, 2012) of Business Insider, a woman named ‘Kirsten’ decided to look into the legality of Pinterest, as she had a great interest in photography. What she discovered convinced her to close down her interest boards completely, as her investigation revealed that photographers had been complaining about copyright violations on Facebook, so she wondered why Facebook could get in trouble for copyright violation and Pinterest couldn’t? Browsing Pinterest’s Terms of Use section, she found that members are solely responsible for what they pin and repin and not only that but they must also have explicit permission from the owner to post everything.

Kirsten states: “I immediately thought of the ridiculously gorgeous images I had recently pinned from an outside website, and, while I gave the other photographer credit, I most certainly could not think of any way that I either owned those photos or had a license, consent or release from the photographer who owned them.”

Pinterest encourages repinning community photos though, so Kirsten found it hard to believe the act was unlawful. She continued to dig. Kirsten turned to federal copyright laws and found a section on fair use. Copyrighted work can only be used without permission when someone is criticizing it, commenting on it, reporting on it, teaching about it, or conducting research.  Repinning doesn’t fall under any of those categories. The one glimmer of hope for Pinterest, Kirsten writes, is the outcome of Kelly v. Arriba Soft Corporation.  In that case, a photographer sued a search engine.  The search engine won because it used thumbnail images in its results, not the entire work. Thumbnails aren’t always fair use, however.  They’re only fair use if the necessary portion of the work is copied and nothing more.  Pinterest, however, lifts the entire image from the original source which is not ok. If that didn’t scare Kirsten enough, the all caps section of Pinterest’s Terms of Use did.

Pinterest writes:

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to use and use of the site, application, services and site content remains with you.” What’s more, Pinterest places all blame and potential legal fees on its users.  It writes: “You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”

Basically, if a photographer sues you for pinning an image illegally on Pinterest, the user must not only pay for his or her lawyer, they must also pay for Pinterest’s lawyer.  In addition, the defendant must pay all charges against him or herself, along with all of Pinterest’s charges.

Read more: http://www.businessinsider.com/pinterest-copyright-issues-lawyer-2012-2#ixzz3FkKrpuO2

Analysis:
It would appear that if companies such as Pin Interest and other Social Media Sites have contractual ‘small print’ written into their terms and conditions when you first sign up, the average internet user may not be aware of what it is they are signing up for. There is not, I would surmise an opt out clause. Therefore greater care and consideration with a higher degree of moral and social responsibility needs to be made when going online. Any internet based company has a moral obligation to make it clear to users that there are terms and conditions of use. Most companies issue this in reams of small print making it a labourious process to read through when users just want to enjoy sharing their photographs or their creations.
Case Study Two:
According to O’Carroll of the Guardian (16th of January, 2013) the issue of image copyright placed the social media site Twitter in the spotlight following a crash in London of a helicopter.The London Evening Standard used a photo Craig Jenner posted on Twitter for its front-page article on Wednesday’s helicopter crash.

The BBC Radio 4 Today programme referred to Twitter as the news was breaking showed just how much social media transformed the way mainstream news organisations cover breaking stories. By the afternoon, the London Evening Standard had covered the event with a photo taken by Craig Jenner showing the rush-hour accident.

The speed with which the media used eyewitness photos posted on Twitter is not surprising given the nature of the story, but it does raise an issue about copyright. In the past, such material was called user-generated content, or citizen journalism. The rules of engagement have changed and everyone needs to be aware of this.

The article states: ‘‘The Daily Mail, the Sun, the Guardian, Sky News, news agencies the Press Association and Caters News, and the Evening Standard – all of which used Twitter pictures of Wednesday’s Vauxhall crash – acknowledge that, under the law, the photographer owns the copyright. Twitters terms of service does not change this, it merely gives Twitter the licence to use the photos or videos. An Evening Standard picture desk executive said that in the heat of the moment, the paper could not contact Jenner about its splash, but if he, or anyone else, contacts them regarding payment, they will oblige.” http://www.theguardian.com/technology/2013/jan/16/twitter-pictures-london-helicopter-crash-copyright

The rights of the Twitter poster in the case were confirmed by District Judge Alison Nathan,  who found that two media outlets – the Washington Post and Agence France Press – had infringed copyrights of photographer Daniel Morel in using pictures he took of the aftermath of the Haiti earthquake in January 2010. AFP, which has clients around the world, had argued that once the pictures were available on Twitter they were freely available for it to distribute. However, the judge ruled that Twitter’s terms of service does not waive copyright for the photographer and AFP was in the wrong.

Issues around market users responsibility to photographer:
Case Study One:

Philip Wolmuth has worked as a freelance photographer for 30 years looks at the current market for freelance photographers, and despite all the gloom, sees some hope for the future says Phil Coomes (BBC News: Picture Editor, 2013). In November the picture editor of Community Care called to let me know that the issue that had just gone to press would be the last – future editions will appear online only.Wolmuth states: ”Print is dying, slowly strangled by the move to the web of both advertisers and readers – and publishers are struggling to make the web pay. Earlier the same month Getty Images, one of the two largest photo agencies in the world (by revenue), announced a cut in payments to its editorial contributors. Photographers supplying the private equity-owned company saw their share of reproduction fees reduced from 50% to 35%.”

Over the same period, one regular contributor to Alamy has seen her annual sales remain roughly steady, but her income fall from £42,000 to £18,000 – a drop in average sale price of almost 60%. Alamy describes itself as “the world’s first open, unedited collection of images”, which has thousands of contributors, including many amateurs, students and others – who would never have had access to the market in the pre-digital era.

To the agencies it makes little difference whether they sell one picture for £100, or five for £20, but such low fees (and some are even lower) are not sustainable for photographers. The strategy is only possible because many of the smaller agencies, an integral part of the photo market in the days of film, were either bought up by the big players, or folded – unable to handle the very considerable costs of digitisation. The resulting concentration of ownership, together with the proliferation of imagery from a much wider range of sources, has done serious damage to an income stream that has been a mainstay for many freelancers ever since the days of Robert Capa and Henri Cartier Bresson.

Analysis:

This article looks at how any amateur(s) who are happy to work for free, makes it impossible for a professional photographer to compete with them. Furthermore, it is disappointing when national newspapers fails to see ‘good value’ photography. Photography has suffered from a huge drop in reputation since the advent of digital. Picture editors keep their prices low saying “it’s easy now, isn’t it?” – some are paying half day and day rates the same as 10-15 years ago. The perception is that you point and shoot and sort it out in Photoshop later – without understanding there is no ‘talent’ filter. Or that amateurs are happy to have their image reproduced copyright free or contribute their images for next to nothing. I would surmise that this is not a new problem for the industry but that the digital age and the current economic crisis has contributed to make it more difficult for photographers to retain the right to their work and sell their images for a reasonable amount. Market users have an obligation and a responsibility to adhere to principles that govern fair practice. Organisations like the AOP and the BIPP have a set of codes and ethics as do the majority of companies which ought to govern and protect the rights of photographers. They have to earn a living just like everyone else and it is inappropriate to even attempt to measure a professional photographer with an amateur taking a photograph on their phone. If there wasn’t the demand to sell newspapers with these sensationalised stories (London Helicopter Crash being an acute example – see above), then there would not be the demand on unprofessionals to record these events. Such findings ought to be left to the professionals. However, personally, I cannot see a way around this, as in the event of the digital age, images are bombarded to us at an astounding rate. Professional photographers must come out of their shells and tackle this problem head on. If the general public do not understand that there is a distinct difference between an amateur and professional photographer, then how are they going to change things for the better?

Case Study Two:

Nikon D600 Dust problem solved: Owners get the repair they have been waiting for:

This is an interesting case and one that may become relevant to all photographers. It is particularly relevant to my own photography as I own a Nikon D800 and this is clearly a recent investigation that many Nikon users have faced in America. On the 25th of February 2014, Mike Tomkins (Imaging Resource) reported that the affordable, full frame Nikon D600 had an Achilles heel – dust spots in its images. Nikon announced through an issued technical service advisory that they plan to fix the cameras much discussed sensor dust wores regardless of warranty status. (and that overseas Nikon are following suit). The issue (which was first discovered just weeks after the camera was announced, camera owners such as Lens Rental and Kyle Clements suggested that the shutter mechanism was shedding dust and/or oil which then adhered to the surface of the sensor assembly, especially on the left hand side. While tests suggested that the problem largely resolved itself after the first several thousand shots, the debris splatters could be difficult to remove with the typical sensor cleaning kit which subsequently caused a lot of technical problems for photographers.

Up until that point, Nikon’s only advice for photographers had been to return the cameras for cleaning under its warranty program. For obvious reasons, this was argued that in this case, returning the camera was not wholly satisfactory as you either had to return the camera on multiple occasions or wait for the new dust to stop appearing before requesting the service. Now, according to the service advisory D600 owners will be able to return their cameras to Nikon at the company’s expense and as well as cleaning the glass and sensor cover to remove dust and oil spots they will also replace the shutter assembly as needed by using a replacement assembly that does not have the same problem. To see the problems with the dust sensor please refer to my research folder for more information.

Analysis:

It would appear that the service program was created as a direct response to recent news regarding a class action lawsuit against Nikon. Nikon it appears blames the supplier as it is evident that a lot of camera parts are obtained elsewhere because of the area of expertise involved. If multiple companies are involved in the creative process of making a new camera, then it can be extremely difficult to understand who is liable for costs. Sony produced CCD image sensors being a classic example. Nikon it would appear have not confirmed who supplied the shutter mechanism and although Copal were suggested so to an extent Nikon could also be a victim in this process.

Grey Market Products:

It is worthy to note that grey market products for the photographer can pose a problem. Companies no doubt prefer to service cameras in their country of origin, which are determined by their serial numbers and some disreputable companies will sell grey market products without the buyers knowledge making it difficult to return if faulty.

The article as point in case states that the service program launch now offers a definitive solution to the problem. If I was a photographer working with a Nikon D600 I would find this solution to be a compromise that should not have been and I would be so unhappy about the situation that I would be demanding my money back in a total refund. If one attends a professional shoot with this camera and finds dust or oil on the lens then each shot taken would possibly and probably be affected. This is unacceptable in my opinion. If the photographer loses work due to manufacturer error then a case for compensation would ensue. Unfortunately, each individual camera purpose would be treated as such and the likelihood of loss of earnings would make it very difficult for a photographer to sustain a living until these problems were sorted out. The only way round this problem therefore would be to either hire another camera to complete professional assignments or purchase and due to the expense of cameras who can afford that these days if you are working as an independent photographer?

There have also been claims of returns which indicate that inappropriate bills have been charged to customers who have returned the camera in good faith for repair. A two week turnaround has been reported by some customers who reported that they found this to be satisfactory. In the majority of cases the shutter mechanism has been reported as being faulty and an additional cleaning process has been deemed necessary.

Moral responsibility of audience – us?!
What ethical and moral responsibilities do photographers have towards their subject if they are children?
Case Study One:
According to Swarda Padwal on the website below:
‘Children are protected under child welfare acts and policies. Thus, photographers should consider some things before photographing children. The child being photographed is at risk. Any one can make use of the child’s photographs of this child to trace him and he can be easily identified if the photograph carries details of the child. Children’s photographs can even be used on internet for bad publicity.

The photojournalist must put forth the interest of the child or children. He should obtain a prior consent of the parents of children before taking a photograph, especially if the child is outstanding in the photograph. Secondly, this should be acceptable to the child and he himself should endorse it. The photographer should introduce himself to the parents with ample proof of his experience with children and other references. He should not be alone with the child and take pictures in the presence of children’s parents. Lastly, he should not take photographs which portray the child in inappropriate or unsafe way.”

Analysis:
This singular statement from a concerned citizen is testament to the mistrust that exists between the purpose or intention of the professional photographer and the general public/audience. While I agree that there has to be a high level of moral responsibility to protect the rights of children, the statement appears to squash the rights of the photographer to photograph where he or she sees fit. The only statement I can concur with in this situation is the latter one. Children are protected under child welfare acts and policies but a child simply by being photographed is not necessarily at risk, the photographer has a moral and ethical responsibility to ensure that the rights of the child is protected in the fact that such images should not be used for ‘bad’ publicity but the term ‘bad’ could be interpreted in a variety of ways and the very term conjures up an idea that all photographers are not ethical or moral. Prior consent is not always possible if for example children are shot in a crowd environment and not all children are capable of either endorsing or not endorsing a photograph. Additionally, the notion that a street photographer (for example) should gain both the full consent of the parents and provide there and then proof of his experience in photographing children and also provide other references is ridiculous.
While I agree that care and discretion should be taken this statement is negative towards the photographer in a way that I feel is biased and does not protect the rights of the photographer and what is worse, judges the photographer in an equally negative light. Professional photographers are just that, professional. If a parent does not want a photograph of their child to be taken then they must ensure where possible not to allow a photograph to be taken if they are not happy with the outcome. While I have empathy with the parent and the person writing this article, I can see that to proceed with this manner of negativity towards photographers can only damage the industry. Common sense is what should prevail here and while every effort is made towards protecting the child (presumably being photographed by a professional) then it is the moral responsibility of the parent to ensure that protection is carried out to the fullest extent deemed necessary through mutual agreement and communication. If communication is not possible (i.e. the photograph is taken in a public place) then the moral and ethical responsibility transfers to the photographer to ensure that childrens rights are not infringed.
Case Study Two:
Voodoo Fest Photographer files battery charges against Odd Future MC Left Brain:
In an article written by Alison Fensterstock of the  Times- Picayune (November 2011) the photographer Amy Harris pressed charges against Odd Future Mc Left Brain for slapping her in the face during the shoot of the groups set at the 2011 Voodoo Experience. New Orleans photographer Erika Goldring was in the pit during Odd Futures set who was shooting for Getty Images. Both Bolen and Goldring (another official photographer) pointed out that festivals and big venue gigs offer a tidy solution for artists who dislike being photographed. Odd Future’s public statement about the incident claimed that they told the photographers ”to clear out” multiple times but they didnt have to as Voodoo would have happily done it for them if asked. Goldring said in a statement that if musicians really hate photographers then why just ban them from the pit, there is not a reason for them to be nasty and it is really sad that the band thinks that their behaviour is acceptable. Consensus opinion appears to confirm that the band were behaving inappropriately.
Analysis:
I cannot begin to imagine that because I was employed (and indeed by a reputable company) to take photographs of band members that they would think they had the right to hurl abuse or be physically violent. Even the threat of that would have me running for the hills or worse still giving up photography for forever. The article suggests that some kind of weird identity transference occurred (an idea that the violence in the song transfers to the crowd and the band members) but the fact remains that the photographer was there in a professional capacity and should be treated accordingly (never mind those who expect abuse at a venue when they have paid to receive abuse?!). This is a bizarre case and one that should be treat with caution. I very much doubt that every concert results in violent acts and therefore to my mind it is just an excuse to be abusive towards people who know no better. The photographers position in this case is untenable and no doubt the band have a lot of legal support but one forgets that every member concerned that is seen visibly in a public arena must behave with respect. I assume that the band concerned do not care if they receive bad press but this highlights problems for photographers who on occasion have to contend with public and personal abuse for their profession. I do not know of a solution to this problem other than to learn through experience and refuse to accept to photograph where harm may come to you as a professional.

Disclaimer: All images above have been used for educational purposes only and are deemed by the photographer as part of her studies and therefore fair use. If you have any queries with regards to this matter, please refer to the guidelines link below: http://www.ict4lt.org/en/en_copyright.htm#era

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