Category: Copyright

Remembering Helen Levitt: “New York’s Visual Poet Laureate”

When I saw that this year’s World IP Day/Week celebrates the contributions of women, the first thought that came to mind was a memory of a chance meeting in the Spring of 1986 with a legendary photographer named Helen Levitt. My friend Josh and I were in New York City down from college and were supposed to stop by a gallery owned by a friend of his family. When we arrived, the owner, along with another woman who looked about seventy, was reviewing stacks of Levitt’s photographs. So, when Josh announced, “I love Helen Levitt,” he did not notice—but I did—that the older woman sitting at the end of the table, very quietly, almost to herself, said, “Thank you.”

Then, with proper introductions made, we were invited to join Ms. Levitt and the owner in poring over some of most widely-regarded images ever made in the genre of street photography. “They kept offering us more photographs like a pair of Jewish grandmothers serving chicken soup,” as Josh remembers it. At the age of eighteen, I had never heard of Helen Levitt or her work, but then neither had a lot of people due to the fact that she was an intensely shy and private person, shunning publicity for most of her more than sixty-year career capturing some of New York’s most poignant, charming, humorous, and painful little moments.

Had I thought of anything smart to ask, Levitt wouldn’t have wanted to answer it anyway, as NPR’s Melissa Block would later discover in a rare interview conducted in 2002. In response to Block asking about one photo depicting a group of girls on the sidewalk watching floating soap bubbles that seem to be following them, Levitt replied, “If it were easy to talk about, I’d be a writer. Since I’m inarticulate, I can express myself with images.”

In an era when the techno-pundits have preached to all the artists that they must abandon the concept of value in their works and instead “cultivate their personal brands” on the free platforms of abundance, this memory of a chance meeting with a woman and artist who rejected notoriety seems well suited to observing World IP Day 2018. Because without question, Levitt’s work speaks for itself, even if she was reluctant to speak for her work. As her friend, fan, and collaborator James Agee wrote in the introduction to her first book in 1965, “…the photographs as a whole body seem to me to combine in a unified view of the world, an uninsistent but irrefutable manifesto of a way a of seeing, and in a gentle and wholly unpretentious way, a major poetic work.”

Born in Bensonhurst, Brooklyn in 1913, Levitt dropped out of high school in her senior year and first learned basic photographic skills working for a commercial portrait photographer starting in 1931. By the mid-1930s, there was a growing emphasis on documentary photography, when artists like Walker Evans, Ben Shahn, and Dorothea Lange were hired by FDR’s Resettlement Administration to portray the effects of the depression and the famine of the “dust bowl.” Levitt, who would become a colleague of Evans and Shahn, was initially inspired to take pictures with a social agenda, but in that same 2002 interview, she said …

“I decided I should take pictures of working-class people and contribute to the movements. Whatever movements there were—Socialist, Communist, whatever was happening. And then, at one point, I saw the photographs of Cartier-Bresson, and I realized photography could be an art. That made me ambitious. I wanted to try to do something like that. Instead of pictures were being use for a purpose. Trying to approach making a picture that would stand up by itself.”

After Levitt met Bresson in 1935, accompanying him while he photographed the Brooklyn waterfront, she bought a used Leica the following year and taught herself composition by looking at art in museums. Then, when she began taking pictures in the city’s poorer neighborhoods, like Spanish Harlem and the Lower East Side, it was not as a documentarian but as an artist. Unlike the very specific empathy inspired by Lange’s beautifully heartbreaking “Migrant Mother,” Levitt abandoned that kind social commentary for something more subtle, or as Agee and many other critics would say, for photographs that are “lyrical.”

In the days before air conditioning and television, the streets of the neighborhoods Levitt visited were the living rooms and commons of the adults and—most of all—the playgrounds and “battlegrounds” of the the children. Here she found visual poetry.

In one of my favorite photos, a group of boys plays with a broken mirror on the sidewalk. Two of them pick through the jagged shards on the curb while another pair holds the empty, wooden mirror-frame upright so that what first grabs our attention is the small boy seated on a tricycle, positioned behind and, therefore, within the upheld frame. We instinctively see what looks like a reflection of a child who isn’t there until a moment of study corrects this perception. Particularly because of this frame-within-a-frame element, this image feels almost collage-like, composed of fragments, much like the broken bits of mirror being contemplated by the boys.

Like much of Levitt’s work, this photograph is full of kinetic energy, not so much telling a definitive story as inspiring the viewer to concoct any number of stories to describe the moments just before and just after the scene she has chosen to memorialize. Although the children in this image are demonstrably poor, neither that nor their multi-ethnicity is what Levitt presents or asks us to think about. To the contrary, the mood of the photo is more like a Rockwell idyll–just boys being boys. In this regard, it’s easy to wonder if Levitt’s profound shyness did not lend itself to a proclivity for the kind of detachment needed to make art from a keyhole view of real people. I asked my friend Marco North about Levitt’s influence on his own street photography, and he replied …

“She looked at the world really carefully, and recognized the most subtle gestures, the most fleeting laughter and elevated them to something fairly epic. I feel wisdom in her images, about life’s complexity – pain and triumph, joy and tears it is all there, with a gentle gaze, set inside a landscape (her pictures always carry context, a lot of environment with them.) I think Levitt taught me that there is a way to take the ugly, grotesque moments we witness in the street and just witness them, adding nothing overt to them, not commenting or romanticizing or demonizing – just putting a moment on a plate and serving it for lunch, no fancy parsley sprigs on it, just food for thought.”

Possibly inspired by Ben Shahn, Levitt often used a right-angle lens that allowed her to point the camera perpendicular to what she was really framing, thus preventing her subjects from altering their natural behavior for the camera. In that same NPR story, photography scholar and curator Maria Morris Hambourg describes Levitt as “like a cat, very quiet, very slight.” This jibes with the the resulting images suggesting that Levitt deftly maneuvered between the obvious icons of poverty—the broken, peeling, and threadbare neighborhoods—to capture intimate, human moments that her subjects sloughed off without the slightest awareness of their latent artistic value. As Joel Smith writes for The New York Review of Books, “Any human gesture in a street photograph—a swinging arm seen from this angle, a planted foot from that one—results from the posture and movements not of the subject alone but of two people, photographer and photographed.”

Levitt’s first solo exhibit was mounted at New York’s Museum of Modern Art in 1943. A year later she began collaborating with James Agee and artist Janice Loeb on a 14-minute film called In the Street. Essentially Levitt photographs in motion, segments from this film serve as the prologue to Episode Seven (2001) of Ric Burns’s New York documentary series. She received Guggenheim fellowships in 1959 and 1960 to resume her photography, this time in color. Although considered a pioneer in color work, many of her prints were unfortunately stolen out of the modest Greenwich Village walk-up apartment where Levitt lived alone for more than thirty years.

The first national retrospective of Levitt’s work was launched in 1991 by the San Francisco Museum of Modern Art; and in 1997, she received the International Center for Photography’s Master of Photography Infinity Award. Most of her books were published after 1987, when she was 74, suggesting Levitt might have been as reticent to market her work as she was to market herself—at least in contrast to many notable photographers. On March 29, 2009, she passed away in her sleep at the age of 95, and I wonder if there was still a box in the corner marked “Here and There,” the title of a book published in 2004.

Particularly because Helen Levitt never did “cultivate her brand,” her work, and its influence on countless subsequent photographers, says something about the meaning of “originality” in photography. The copyright skeptic often doubts the premise of “authorship,” particularly in works that are at least co-written by forces external to the author. As a mechanical (and now digital) medium of creation, photography has always been vulnerable to this criticism; and street photography might seem particularly “unoriginal” to some.

By contrast, numerous articles refer to Levitt as “New York’s visual poet laureate,” and although I cannot find the source of this accolade, it seems highly appropriate. In much the same way that Walt Whitman poeticized the precision of a blacksmith’s hammer or the dangling shawl of the prostitute in Leaves of Grass, Levitt’s street photographs are among the essential phrases in the city’s ever-expanding vernacular.

Blurred Lines in More Ways Than One – Part II

It hadn’t really occurred to me until last week that nearly all the cases I happen to have read or written about in the past six years entail obvious appropriations of protected works, usually invoking defenses like fair use. In the digital-tech market, many high-profile lawsuits—especially the ones that may pose an existential threat to copyright—involve new business enterprises trying to exploit copyrighted works by making them available without license. That’s a very different animal from a litigation like Williams v. Gaye (a.k.a. “Blurred Lines”), in which a new creative work is alleged to have infringed a precedent creative work by virtue of similarity between the two.

To date, I’ve been in the majority camp that “Blurred Lines” does not infringe “Got to Give It Up.” I hear inspiration but not copying and want to err on the side of giving musical works very “thin” protection from work to work, acknowledging the fact that all songwriter/composers draw upon the same finite set of raw elements and—in some cases—basic rules of arrangement. That said (and knowing I’m going to get yelled at by some songwriters), I’ve now read the amicus brief behind the editorial by Lateef Mtima & Sean O’Connor, alluded to in my Part I post, and they do make a very compelling argument for affirming the decision in Williams. More on that in the next post.

As mentioned in Part I on this topic, attorney Rick Sanders opines that an unusual fact pattern—most especially Robin Thicke’s own testimony—played a substantial role in the outcome to date; but Williams v. Gaye also emphasizes for many legal experts the absence of a consistent doctrine for identifying infringement. Not only do the two circuits—the Ninth and the Second—that adjudicate most copyright cases follow somewhat different formulae for identifying infringement, but they also create internal splits that contradict their own precedents. Still, without going all the way down that particular rabbit hole, here’s my best attempt at describing the basics in a case like this:

Proving Copying

In order to show that a new work infringes a prior work, one must demonstrate that some amount of copying has been done and that what was copied was protectable expression under copyright law. At the same time, the law must not foreclose the possibility—even the likelihood—that two separate authors might independently create two very similar works. If Author B realistically did not know about Author A’s work, he cannot possibly be guilty of infringing that work.

This gives rise to analysis by the courts that weighs “access” to the prior work against the “substantial (or probative) similarity” of the subsequent work to the prior work. In a case where “substantial similarity” is fairly obvious, “access” can be assumed; or in a case where “access” can be assumed, “substantial similarity” need not be so obvious. This is referred to as the inverse-ratio rule. So, in a case like Williams, where “access” to a hit song that’s been in pop culture since 1977 can be assumed, then the bar for “substantial similarity” is a little lower.

Proving Infringement

Once there is sufficient “access” and “substantial similarity” to infer that copying has occurred, this does not automatically allege infringement unless what was copied is both “original expression” and protected under copyright law. Because a core principle of copyright is that it may only protect expression but not protect ideas or facts, in a case of artist v. artist, the court must separate the expression from commonly-shared ideas or facts between the two works. Identifying this separation can be easier in some media than others and easier or harder from work to work. For instance, as Terry Hart describes, “Maybe because literature is made of language and we’re using language to define the boundaries, people seem to have an easier time separating idea and expression in literary works than with categories like musical works.”

In a musical work, “ideas and facts” encompass those common elements that all composers need—time signatures, notes, chords, styles, and even traditional arrangements of some of these elements, like, say, a standard blues riff. Because no composer may copyright these “facts” of music and because not all of us prospective jurors speak music, that’s where an expert becomes essential to offer an opinion to describe how the facts are brought together to define what is “original” about a particular work and then to show where the composer’s choices have either been copied, or not, by the allegedly infringing work.

Why Not Limit to Literal Copying?

It may be tempting to argue that nothing other than literal copying should ever constitute infringement. But this proposal strikes at one of the underlying balancing acts in copyright law. On the one hand, we want numerous, similar but distinct expressions to coexist without legal conflict, lest copyright destroy its own purpose to promote expression. On the other hand, it is understood that if infringement is limited to literal copying, this can also dilute expression by allowing minuscule changes to existing works that enter the market posing as “new works.”

For example, we really don’t want to provide incentive for an author to simply rewrite Huckleberry Finn in his own words and call it a new novel. But you see what I did there? I switched to a different category of works to present a simpler example. Referring back to Hart’s comment, a musical work is, in a sense, the opposite of a novel because the language used in music is the expression that produces a particular sound. Change the musical language, and this generally produces a whole new work, which would not be the case if a new author were to use his own words to tell a familiar tale about a miscreant boy and a runaway slave traveling on a raft down the Mississippi.

With that in mind, the next post on this topic—and I really didn’t see a three-parter coming—will look at all this in context to the argument presented by Mtima and O’Connor with regard to what constitutes the creative expression that is presented to a jury, and why they see this as a matter of social justice.

Ninth Circuit Ends “Monkey Selfie” Boondoggle

If for no reason other than the fact that I’m out of monkey jokes, I’m pleased to announce that the Ninth Circuit Court of Appeals has finally put an end to PETA’s ridiculous litigation in which the organization alleged that the Sulawesi crested macaque in the photograph known as the “monkey selfie” is rightfully the owner of the copyright in the image. After photographer David Slater had his copyright—one could argue—stripped by the blogosphere, he was then forced to defend himself in this preposterous claim by the “animal rights” organization. So, I’m glad for his sake that this bit of absurdist theater is finally over.

Both the majority and concurring opinions focus primarily on PETA’s claim that it had standing in court to act as “next friend” on behalf of the named plaintiff—the macaque whom they randomly called Naruto. “Next friends” are typically representatives of individual claimants who cannot advocate for themselves—minors, mentally or physically impaired persons, or imprisoned persons. A “next friend” must show proper relationship to the allegedly injured party and that they are truly representing the injured party’s interests rather than some other agenda while posing as a “next friend.” In the concurring opinion, Judge Smith writes …

“Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend standing on behalf of animals allows lawyers [citation omitted] and various interest groups [citation omitted] to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced. Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”

And there’s this biting comment in the footnotes of the majority opinion …

“… in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” [citation omitted] PETA seems to employ Naruto as an unwitting pawn in its ideological goals.”

It is admittedly a little disappointing that the court rejected PETA’s standing to represent the monkey in this case only because it might at least have been entertaining to read the opinion of the court on the copyright claim itself. Don’t get me wrong, I think the proposal that an animal can own a copyright is facially absurd—straining at the boundaries of even the most extreme anthropomorphism. Still, it might have been fun to watch the court inquire how, for instance, this primate resident of Indonesia managed to register “his” copyright in the United States in order to be eligible for statutory damages. And that list goes on.

As mentioned in an older post, one of PETA’s fatal flaws is the assumption that ownership of a copyright implies only commercial exploitation and, relatedly, the kind of litigation it brought on behalf of “animals everywhere.” But that’s not what copyright means. Copyright means choice. It means the author may choose the manner in which a work is exploited, and since an animal cannot express that kind of choice—at least not in any language we understand so far—even if PETA had standing, it would find its claims swirling around an ever-widening drain of absurd logic.

Copyright is complicated enough without asking the courts to read the minds of animals. I’m glad we can finally move on from this one.